THE 

NOTARY'S    MANUAL 

(FIFTH  EDITION) 

BASED   UPON 

THE  SECTIONS  OF  THE  CALIFORNIA 

CODES  RELATING  TO  NOTARIES 

PUBLIC 

WITH  EXTRACTS  FROM  AND  NOTES  ON  STATE 
SUPREME  COURT  DECISIONS 

ALSO  CONTAINS 

LEGAL  FORMS  FOR  THE  VARIOUS  NOTARY'S 
CERTIFICATES  AND  PROTEST 


PREPARED   BT 

A  MEMBER  or  THE  SAN  FRANCISCO  BAR 


PUBLISHED   BY 

A.  CARLISLE  &  CO. 

SAN   FRANCISCO 


COPTRIGHT    1908   BT 

A.  CARLISLE  &  Co. 


COPYRIGHT  1911  BY 
A.  CARLISLE  &  Co. 


COPYRIGHT  1916  BY 
A.  CARLISLE  &  Co. 


UMAHT 

COLLCett 
KANTA   BARBARA. 


PREFACE 

This  volume,  as  the  name  indicates,  has  been 
prepared  especially  for  the  use  of  notaries  public. 
It  is  based  upon  the  Codes  of  California  and  the 
decisions  of  the  Supreme  Court  of  this  and  other 
states  so  far  as  they  relate  to  the  law  authorizing 
and  governing  the  acts  of  these  officers,  and  ref- 
erences to  all  sections  and  decisions  are  given. 
No  effort  has  been  spared  to  make  this  book  a 
complete  and  reliable  guide.  The  chapters  on 
deeds,  mortgages  and  homesteads  have  been  in- 
serted for  the  purpose  of  giving  general  infor- 
mation on  these  subjects,  and  because  the  notary 
is  frequently  expected  to  draw  as  well  as  take 
the  acknowledgment  of  these  instruments.  A 
thorough  understanding  of  the  subject  of  Bills 
and  Notes  is,  of  course,  necessary  to  the  intelli- 
gent protesting  of  negotiable  paper,  and  it  is 
believed  that  this  important  subject  is  clearly 
and  concisely  covered.  Correct  and  practical 
forms  of  certificates,  protests,  etc.,  are  appended. 


TABLE   OF   CONTENTS. 
CHAPTER  I. 

SEC.  PAGE 

Notaries  Public 1-12  9-17 

Appointment 1  9 

Eligibility 2  10 

Qualification 3-4  10-1 

Duties 5  11-2 

Compensation 6 

Jurisdiction 7  14-5 

Term  of  Office 8  15-6 

Records 9-10  16-7 

Liability 11-2  17 

CHAPTER  II. 

Acknowledgment  and  Proof  of  Instru- 
ments    13-41  18-45 

Nature  of  acknowledgment 13 

Nature  of  proof 14  19 

Purpose  of  acknowledgment  or  proof  15  20 
Private  writings  may  be  acknowl- 
edged    16  20 

Authority  to  take 17  21 

Mode  of  taking 18-22  22-32 

Acknowledgment  by  married  women  23 

Certificate  of  acknowledgment 24-31  33-39 

Proof   of  execution   when   not   ac- 
knowledged   32-7  40-43 

Certificate  of  Proof 38  44 

Defective  certificates 39-41  44-45 

CHAPTER  III. 

Recording  of  Instruments 42-54  46-53 

Acknowledgment  necessary 42  46 

What  may  be  recorded  without  ac- 
knowledgment   43-5  47-48 


TABLE    OF   CONTENTS. 


SEC.  PAQB 

Mode  of  Recording 46-8  49 

Purpose  and  effect  of  recording 49-51  50-51 

Effect  of  failure  to  record 52  51 

Unrecorded  instrument  when  valid . .   53  52 
Instruments  to  be  acknowledged  and 

recorded 54  53 

CHAPTER  IV. 

Deeds 55-78  55-68 

Definitions 55  55 

Must  be  in  writing 56     •  56 

Form  and  contents  of 57-61  57-59 

Execution 62-5  60-61 

Power  of  attorney 66-8  61-62 

Delivery 69-72  62-64 

Interpretation  of 73  64 

Effect  of 74-7  65-68 

Instrument  made  with  intent  to  de- 
fraud  : . .  78  68-69 


CHAPTER  V. 

Mortgages 79-104  70-84 

Nature  of  mortgages  hi  general 79  70 

Possession  of  the  property 80  71 

Transfer  when  a  mortgage 81  72 

Foreclosure 82  76 

Power  of  attorney  to  execute 83  73 

Assignment  of  debt 84  73 

Record  of  assignment  of  mortgage  . .  85  74 

How  discharged  of  record 86  74 

Satisfaction  of 87  76 

Of  real  property 88-91  76-8 

Of  personal  property 92-104  78-84 

CHAPTER  VI. 

Homesteads 105-20  85-94 

Meaning  of 105  85 

Head  of  family 106  86 


TABLE    OF   CONTENTS. 


SEC.  PAGE 

Selection  of 107-11  86-88 

Declaration  of 112-4  88-89 

Exempt  from  execution 115  90 

Subject  to  execution 116  91 

How  conveyed  or  encumbered 117  91 

Abandonment  of 118  92 

Proceedings    on    execution    against 

homestead 119  92 

Of  insane  persons 120  94 

CHAPTER  VII. 

Affidavits 121-7  95-99 

Nature  of 121  95 

Use  of 122  96 

Authority  of  notary  to  take 123  97 

Requisites  of 124-7  98-99 

CHAPTER  VIII. 

Depositions 128-146  100-1 15 

Definition  and  nature  of 128  100 

When  may  be  taken  in  this  state ....  129  101 

Manner  of  taking 130-31  102-104 

Certificate  to 132  104 

Subpoena 133-40  104-111 

Witnesses 141-3  112-113 

Oaths  and  affirmations 144-6  115 

CHAFPER  IX. 

Bills  and  Notes 147-235  117-166 

Duty  of  notary  in  respect  to 147  117 

Bills  of  exchange 148-51  118-120 

Promissory  notes 152-5  120-121 

Checks 156-7  122 

Bank-notes 158  122 

Certificates  of  deposit 159 

Relation  of  parties  to  bills  and  notes .  160  123 

Negotiability 161-2  124-125 


TABLE   OF   CONTENTS. 


SEC.  PAGE 

Instruments,  when  negotiable 163-9  127-132 

Endorsement 170-9  132-138 

Presentment  for  acceptance 180-4  138-140 

Acceptance 185-90  1  i  1-143 

Non-acceptance 191  143 

Acceptance  or  payment  for  honor. .  .    192-6  144-145 
Presentment  for  payment  of  nego- 
tiable instruments  in  general. . .  ...   197-203  145- 150 

Presentment  of  bills  of  exchange  for 

payment 204-8  150-152 

Extinction     of     negotiable     instru- 
ments    209-10  152-153 

Dishonor  of  negotiable  instruments .  211  153 

Notice  of  Dishonor 212-22  15 1-158 

Protest 223-235  159-166 

APPENDIX. 

Certificates  of  acknowledgment,  Forms  Nos.  1-7.  1G7-171 

Certificates  of  proof,  Forms  Nos.  8-11 171-175 

Certificate  to  deposition,  Form  No.  12 17o 

Notice  of  protest,  Form  No.  13 176-177 

Protest,  Forms  Nos.  14-18 177-182 


The  Notary's   Manual 

FIFTH    EDITION 


CHAPTER  I. 

NOTARIES    PUBLIC. 

Jl  Appointment. 

2  Eligibility. 

3-4  Qualification. 

5  Duties. 

6  Compensation. 

7  Jurisdiction. 

8  Term  of  office. 
9-10  Records. 

11-12  Liability 

Appointment. 

SECTION  1.  Notaries  Public  are  public  offi- 
cers appointed  by  the  governor,  usually  upon  pe- 
tition addressed  to  him  setting  forth  the  qualifi- 
cations of  the  applicant  and  signed  by  citizens 
and  residents  requesting  the  appointment.  There 
is  no  restriction  upon  the  number  that  may  be 
appointed  for  the  several  counties  of  the  state — 
the  governor  having  authority  to  appoint  such 
number  "as  he  shall  deem  necessary  for  the  pub- 
lic convenience" — except  that  the  number  to  be 
appointed  for  the  city  and  county  of  San  Fran- 
cisco is  limited  to  one  hundred  and  twenty,  i 

(1)  Political  Code,  J791 


10  NOTARY'S  MANUAL. 

Eligibility. 

SECTION  2.  The  only  qualifications  required 
by  statute  are  the  following:  The  person  must,  at 
the  time  of  appointment,  be  a  citizen  of  the  United 
States  and  of  this  state,  twenty-one  years  of  age, 
and  must  have  resided  in  the  county  for  which 
the  appointment  is  made  for  six  months  prior 
thereto.  Women  having  these  qualifications  may 
be  appointed.  2 

Qualification. 

SECTION  3.  Official  Bond  and  Oath.  When 
the  commission  is  granted  the  appointee  is  re- 
quired to  execute  an  official  bond  in  the  sum  of 
five  thousand  dollars  which  bond  must  be  ap- 
proved by  a  judge  of  the  superior  court  of  his 
county,  recorded  in  the  office  of  the  county  re- 
corder and  then  filed  in  the  office  of  the  county 
clerk.  He  must  also  take,  subscribe  and  file 
his  oath  of  office  in  the  office  of  the  county  clerk. 
The  time  within  which  he  must  file  his  official 
bond  and  take,  subscribe  and  file  his  oath  of  office 
in  the  office  of  the  county  clerk,  is  twenty  days 
from  the  date  of  his  commission. , 


Political  Code,  J792 
Political  Code.  {§799,  800 


NOTARY'S  MANUAL.  11 

SECTION  4.  Certificate  of  Facts.  He  is  also 
required  to  transmit  a  certificate  of  the  facts  of 
his  appointment  under  the  hand  and  seal  of  the 
county  clerk,  together  with  a  copy  of  his  official 
oath  signed  by  him  with  his  own  proper  signa- 
ture, to  the  office  of  the  secretary  of  state,  which 
certificate  must  be  filed  in  the  office  of  the  secre- 
tary of  state  within  thirty  days  from  the  date  of 
his  commission.  4  He  is  then  duly  qualified  to 
perform  the  duties  of  his  office. 

Duties. 
SECTION  5.     It  is  the  duty  of  notaries  public, — 

1.  When   requested,  to   demand   acceptance 
and  payment  of  foreign,  domestic  and  inland 
bills  of  exchange,  or  promissory  notes,  and  pro- 
test the  same  for  non-acceptance  and  non-pay- 
ment, and  to  exercise  such  other  powers  and 
duties  as  by  the  law  of  nations  and  according  to 
commercial  usages,  or  by  the  laws  of  any  other 
state,  government,  or  country,  may  be  performed 
by  notaries.     (See  Bills  and  Notes,  Sees.  147-235, 
post.) 

2.  To  take  the  acknowledgment  or  proof  of 
powers  of  attorney,  mortgages,   deeds,   grants, 
transfers,  and  other  instruments  of  writing  exe- 


(4)  Political  Code,  {800 


12  NOTARY'S  MANUAL. 

cuted  by  any  person,  and  to  give  a  certificate  of 
such  proof  or  acknowledgment,  indorsed  on  or 
attached  to  the  instrument.  (See  Acknowledg- 
ment and  Proof  of  Instruments,  Sees.  13-41, 
post.) 

3.  To  take  depositions  and  affidavits,  and  ad- 
minister oaths  and  affirmations,  in  all  matters 
incident  to  the  duties  of  the  office,  or  to  be  used 
before  any  court,  judge,  officer,  or  board  in  this 
state.     (See  Affidavits,  Sees.  121-127,  post;  Depo- 
sitions, Sees.  128-146,  post.) 

4.  To  keep  a  record  of  all  official  acts  done  by 
them. 

5.  To  keep  a  record  of  the  parties  to,  date, 
and  character  of  every  instrument  acknowledged 
or  proved  before  them.     (See  Records,  Sees.  9-10, 
post.) 

6.  When  requested,   and  upon   payment   of 
their  fees  therefor,  to  make  and  give  a  certified 
copy  of  any  record  in  their  office. 

7.  To  provide  and  keep  official  seals,  upon 
which  must  be  engraved  the  arms  of  this  state, 
the  words  "notary  public,"  and  the  name  of  the 
county  for  which  they  are  commissioned. 

8.  To  authenticate  with  their  official  seals  all 
official  acts.  5 

(5)  Political  Code,  J794 


NOTARY'S  MANUAL.  13 

Compensation. 

SECTION  6.  The  fees  of  notaries  are  fixed  by 
law  and  are  as  follows: 

For  drawing  and  copying  every  protest  for  the 
non-payment  of  a  promissory  note,  or  for  the 
non-payment  or  non-acceptance  of  a  bill  of  ex- 
change, draft,  or  check,  two  dollars. 

For  drawing  and  serving  every  notice  of  non- 
payment of  a  promissory  note,  or  of  the  non- 
payment or  non-acceptance  of  a  bill  of  exchange, 
order,  draft,  or  check,  one  dollar. 

For  recording  every  protest,  one  dollar. 

For  drawing  an  affidavit,  deposition,  or  other 
paper  for  which  provision  is  not  herein  made, 
for  each  folio,  thirty  cents. 

For  taking  an  acknowledgment  or  proof  of  a 
deed  or  other  instrument,  to  include  the  seal  and 
the  writing  of  the  certificate,  for  the  first  two 
signatures,  one  dollar  each,  and  for  each  addi- 
tional signature,  fifty  cents. 

For  administering  an  oath  or  affirmation,  fifty 
cents. 

For  every  certificate,  to  include  writing  the 
same,  and  the  seal,  one  dollar. 6 


(6)  Political  Code,  §798 


14  NOTARY'S  MANUAL. 

Jurisdiction. 

SECTION  7.  A  notary  can  only  transact  of- 
ficial business  in  the  county  for  which  he  was 
appointed  and  in  which  he  resides.  His  author- 
ity is  confined  to  the  county  for  which  he  was 
appointed  and  commissioned. 

In  the  case  of  Fairbanks,  Morse  &  Co.  v. 
Getchell,  13  Cal.  App.  458,  a  notary  public  in 
and  for  the  County  of  Kern  had  taken  the  oath 
of  an  affiant  in  Los  Angeles  to  an  affidavit  for 
attachment  over  the  telephone.  The  evidence 
showed  that  the  affiant  had  related  the  facts 
contained  in  the  affidavit  to  the  notary  and 
stated  they  were  true,  and  that  the  notary  was 
familiar  with  his  voice  and  recognized  it  over 
the  telephone.  The  act  of  administering  the  oath 
was  declared  to  be  a  nullity,  and  the  purported 
affidavit  upon  which  the  attachment  was  issued, 
was  declared  to  be  void  and  of  no  effect.  It  was 
contended  in  that  case  that  an  oath  administered 
by  communication  had  between  notary  and 
affiant  over  the  telephone,  was  for  that  reason 
alone  void  and  of  no  effect.  This  point,  however, 
was  not  determined,  the  court  saying: 

"Such  contention  finds  direct  support 
in  the  case  of  Sullivan  v.  First  Nat. 
Bank,  37  Tex.  Civ.  App.  228  (83  S.  W. 


NOTARY'S  MANUAL.  15 

421).  According  to  our  view,  however, 
it  is  unnecessary  to  determine  this  point. 
Assuming,  but  not  deciding,  that  an 
oath  may  be  administered  and  the  obli- 
gations thereof  assumed  by  communi- 
cation had  over  the  telephone,  the 
validity  of  such  act  must  be  held  to 
apply  to  those  cases  only  where  both 
notary  and  affiant  are  within  the  terri- 
torial limits  for  which  the  notary  has 
been  appointed  and  commissioned." 

Term  of  Office. 

SECTION  8.  The  term  of  office  is  four  years 
from  and  after  the  date  of  the  commission.  7 

People  v.  Edleman,  152  Cal.  317,  is  an  impor- 
tant case  relating  to  the  term  of  office  of  notaries 
public.  In  the  City  and  County  of  San  Francisco 
where  the  number  is  limited,  the  question  arose 
as  to  whether,  upon  the  death  of  a  notary,  the 
new  appointee  was  appointed  for  the  balance  of 
the  unexpired  term,  or  for  the  full  term  of  four 
years.  It  was  there  held  that  the  office  comes 
into  full  being  only  when  and  as  the  governor 
names  specific  men  for  the  places;  that  as  to 
his  term  and  office,  no  notary  is  the  legal  successor 


(7)  Political  Code,  §793 


16  NOTARY'S  MANUAL. 

of  another,  and  each  is  appointed  for  the  specified 
term;  and  that  since,  under  the  law,  the  term  of 
a  notary  is  made  a  full  term  of  four  years  from 
the  date  of  his  commission,  and  as  the  death  of 
a  notary  does  not  create  a  vacancy,  each  notary 
when  appointed  is  appointed,  not  for  an  unexpired 
term,  but  for  the  full  term  of  four  years. 

Resignations  must  be  in  writing  and  made  to 
the  governor, 8  and  in  case  the  office  becomes  va- 
cant before  the  expiration  of  the  term,  the  no- 
tary's records  must  be  delivered  to  the  county 
clerk  of  his  county  as  set  forth  in  the  following 
section. 

Records. 

SECTION  9.  On  Death  or  Resignation.  Ex- 
act and  particular  records  are  required  to  be  kept 
of  all  official  acts  (see  Duties,  Sec.  5,  subs.  4-5, 
supra),  and  if  any  notary  die,  resign,  is  disquali- 
fied, removed  from  office,  or  removes  from  the 
county  for  which  he  is  appointed,  his  records 
and  all  his  public  papers  must,  within  thirty 
days,  be  delivered  to  the  clerk  of  the  county, 
who  must  deliver  them  to  the  notary's  successor 
when  qualified.  9  (See  Term  of  Office,  Sec.  8,  supra.) 


(8)  Political  Code,  {995 
(0)  Political  Code,  {796 


NOTARY'S  MANUAL.  17 

SECTION  10.  Of  Predecessor.  It  is  further 
provided  that  every  notary  having  in  his  posses- 
sion the  records  and  papers  of  his  predecessor  in 
office,  may  grant  certificates  or  give  certified  cop- 
ies of  such  records  and  papers  in  like  manner  and 
with  the  same  effect  as  such  predecessor  could 
have  done.10 

Liability. 

SECTION  11.  On  Bond.  For  the  official  mis- 
conduct, or  neglect  of  a  notary  public,  he  and  the 
sureties  on  his  official  bond  are  liable  to  the  par- 
ties injured  thereby  for  all  damages  sustained.  n 
(See  Liability  on  bond  for  failure  to  comply  with 
statute,  Sees.  19-21,  post.) 

SECTION  12.  Criminal  responsibility.  He  is 
also  criminally  responsible  under  Section  167  of 
the  Penal  Code,  which  provides  that  every  public 
officer  authorized  by  law  to  make  or  give  any  cer- 
tificate or  other  writing  who  makes  and  deliv- 
ers as  true  any  such  certificate  or  writing  con- 
taining statements  which  he  knows  to  be  false, 
is  guilty  of  a  misdemeanor. 


(10)  Political  Code,  5797 

(11)  Political  Code,  $801 


18  NOTARY'S  MANUAL. 


CHAPTER  II. 


ACKNOWLEDGMENT   AND    PROOF   OF   INSTRUMENTS. 

§13  Nature  of  acknowledgment. 

14  Nature  of  proof. 

15  Purpose  of  acknowledgment  or  proof. 

16  Private  writings  may  be  acknowledged  or  proved. 

17  Authority  to  take. 

18-22  Mode  of  taking  acknowledgment. 

23        Acknowledgment  by  married  women. 

24-31  Certificate  of  acknowledgment. 

32-37  Proof  of  execution  when  not  acknowledged. 

38       Certificate  of  proof. 

39-41  Defective  certificates. 


Nature  of  Acknowledgment. 

SECTION  13.  The  acknowledgment  of  an  in- 
strument is  the  declaration  or  admission  made  by 
the  party  executing  it  to  an  officer  having  author- 
ity to  take  acknowledgments,  that  the  instrument 
was  executed  by  him  and  the  same  is  his  act  and 
deed.  It  is  then  the  duty  of  the  officer  to  in- 
dorse on  or  attach  to  the  instrument  his  cer- 
tificate of  acknowledgment.  (See  Certificate  of 
Acknowledgment,  Sees.  24-31,  post.}  The  ac- 
knowledgment adds  nothing  to  the  validity  or 
effect  of  the  instrument  as  between  the  parties. 
It  "is  only  the  mode  provided  by  law  for  authen- 
ticating the  act  of  the  parties  so  as  to  entitle  the 


NOTARY'S  MANUAL.  19 

instrument  to  record  and  make  it  notice  to  sub- 
sequent purchasers,  and  to  entitle  it  to  be  read  in 
evidence  without  other  proofs.  If  purchasers 
neglect  to  have  their  deeds  properly  authenti- 
cated and  recorded,  they  will  be  liable  to  have 
their  title  divested  by  subsequent  conveyances  to 
innocent  parties,  and  to  the  further  inconvenience 
of  being  compelled  to  prove  their  execution  when 
called  upon  to  put  them  in  evidence."  l 

Nature  of  Proof. 

SECTION  14.  It  is  usual  to  acknowledge  in- 
struments at  the  time  of  executing  them,  but 
under  certain  sections  of  our  Civil  Code  the  exe- 
cution of  conveyances,  when  not  acknowledged, 
may  be  proved  by  the  subscribing  witnesses,  and 
when  the  subscribing  witnesses  are  dead  or  can- 
not be  had,  the  end  may  be  accomplished  by 
proving  the  handwriting  of  the  party  and  of  the 
subscribing  witnesses  by  other  witnesses  (see 
Proof  of  execution  when  not  acknowledged,  Sees. 
32-38,  post),  and  upon  such  proof  the  officer 
may  make  his  certificate  thereof  and  the  instru- 
ment thereafter  becomes  entitled  to  record  and 
to  be  read  in  evidence  without  further  proof.  It 
has  been  held  that  this  may  be  done  years  after 


(1)  Landers  v.  Bolton,  26  Cal.,  405 


20  NOTARY'S  MANUAL. 

the  actual  making  of  the  deed  and  even  after 
the  parties  and  witnesses  to  it  are  dead;2  the  law, 
however,  protects  innocent  parties  who  have  ac- 
quired rights  in  the  meantime  without  notice. 

Purpose  of  Acknowledgment  or  Proof. 

SECTION  15.  The  purpose  of  acknowledg- 
ment is  twofold:  to  enable  the  instrument  to  be 
recorded  (see  Acknowledgment  necessary,  Sec. 
42,  post;  also  see  Purpose  and  Effect  of  Record- 
ing, Sees.  49-51,  post),  and  to  entitle  it  to  be 
used  as  evidence  without  further  proof.  It  is  a 
rule  of  evidence  that  every  instrument  conveying 
or  affecting  real  property,  acknowledged  or 
proved,  and  certified,  as  provided  by  law,  may, 
together  with  the  certificate  of  acknowledgment 
or  proof,  be  read  in  evidence  in  an  action  or  pro- 
ceeding, without  further  proof.  3  (See  Record  of 
Instrument  may  be  used  in  evidence,  Sec.  51, 
post.) 

Private  Writings  May  Be  Acknowledged  or  Proved. 

SECTION  16.  Every  private  writing,  except 
last  wills  and  testaments,  may  be  acknowledged 
or  proved  and  certified  in  the  manner  provided 
for  the  acknowledgment  or  proof  of  conveyances 


(2)  Landers  v.  Bolt  on,  26  Cal.,  406 

(3)  Code  of  Civil  Procedure,  §1951 


NOTARY'S  MANUAL.  21 

of  real  property,  and  the  certificate  of  such  ac- 
knowledgment or  proof  is  prima  facie  evidence 
of  the  execution  of  the  writing  in  the  same  man- 
ner as  if  it  were  a  conveyance  of  real  property., 

Authority  to  Take. — Disqualification. 

SECTION  17.  Acknowledgment  or  proof  of 
an  instrument  may  be  made  in  this  state,  within 
the  city,  county,  city  and  county,  township  or 
district  for  which  the  officer  was  elected  or  ap- 
pointed, before  either  of  several  officers,  one  of 
which  is  a  notary  public.  5  (See  Jurisdiction,  Sec. 
7,  supra.)  A  notary  is,  however,  disqualified  from 
taking  an  acknowledgment  where  he  himself  is 
the  grantee  or  mortgagee  in  the  instrument  ac- 
knowledged. In  such  case  the  acknowledgment 
has  been  held  to  be  void  and  of  no  effect. 6  It  is 
the  general  law  that  a  party  beneficially  inter- 
ested in  an  instrument  is  incapable  of  taking  and 
certifying  an  acknowledgment  of  it.  He  is  not, 
however,  disqualified  by  reason  merely  of  being 
the  agent  of  a  party  to  the  instrument,  if  not 
pecuniarily  interested  in  the  transaction^ 
Whether  a  notary  who  is  a  stockholder  of  a 


(4)  Code  of  Civil  Procedure,  §1948 

(5)  Civil  Code,  51181 

(6)  Lee  v.  Murphy,  119  Cal.,  370;   Murray  v.  Tulare,  etc.,  120  Cal.,  311 

(7)  Bank  of  Woodland  v.  Oberhaus,  125  Cal.,  320 


22  NOTARY'S  MANUAL. 

corporation,  has  such  an  interest  as  to  avoid 
an  acknowledgment  of  the  corporation  taken 
before  him,  is  not  altogether  clear,  but  such  an 
acknowledgment  seems  to  have  been  upheld  in 
this  state  on  the  ground  that  the  notary  exercises 
merely  ministerial,  and  not  judicial  powers.  An 
instance  of  the  exercise  of  quasi-judicial  functions 
on  the  part  of  the  notary,  is  where  the  law 
requires  a  privy  examination  of  a  married  woman 
apart  from  her  husband,  but  such  law  has  not 
existed  in  this  state  since  1891.8  In  the  same 
case,  the  acknowledgment  of  a  deed  to  a  bank 
taken  by  a  notary  who  was  assistant  cashier  of 
the  bank,  was  declared  valid. 

Mode  of  Taking  Acknowledgments. 

SECTION  18.  Identity  of  party  must  be  ascer- 
tained. The  notary  is  required  to  know  that  the 
person  who  appears  before  him  and  makes  the 
acknowledgment  is  the  person  described  in  and 
who  executed  the  instrument,  and  if  he  does  not 
know  it  he  must  require  satisfactory  evidence 
of  that  fact.  Section  1185  of  the  Civil  Code 
reads  as  follows: 

"The  acknowledgment  of  an  instru- 
ment must  not  be  taken,  unless  the  of- 
ficer taking  it  knows  or  has  satisfac- 

(8)  First  National  Bank  v.  Merrill,  167  Gal.,  396 


NOTARY'S  MANUAL.  23 

tory  evidence,  on  the  oath  or  affirma- 
tion of  a  credible  witness,  that  the  per- 
son making  such  acknowledgment  is 
the  individual  who  is  described  in  and 
who  executed  the  instrument;  or,  if  exe- 
cuted by  a  corporation,  that  the  person 
making  such  acknowledgment  is  the 
president  or  secretary  of  such  corpora- 
tion, or  other  person  who  executed  it 
on  its  behalf." 

The  importance  of  a  strict  compliance  with  the 
course  prescribed  by  this  section  in  the  taking  of 
acknowledgments  has  been  declared  by  the 
supreme  court  in  the  case  of  Joost  v.  Craig,  131 
Cal.  504,  and  by  the  appellate  court  in  the  case  of 
Homan  v.  Wayer,  9  Cal.  App.  123,  and  because 
of  the  emphasis  with  which  this  matter  is  treated 
in  these  cases,  they  are  quoted  from  somewhat  at 
length  in  the  following  section. 

SECTION  19.  Liability  on  bond  for  failure  to 
comply  with  statute.  In  the  case  of  Joost  v. 
Craig,  131  Cal.,  504,  a  deed  was  apparently  exe- 
cuted and  acknowledged  properly,  and  the  cer- 
tificate of  the  notary  stated  that  the  person  who 
acknowledged  the  execution  of  the  instrument 
personally  appeared  before  him  and  was  known 
to  him  to  be  the  person  described  in  and  who 


24  NOTARY'S  MANUAL. 

executed  the  said  instrument.  The  deed  turned 
out  to  be  a  forgery.  The  plaintiff  in  the  case 
accepted  the  deed  and  paid  his  money,  relying 
solely  on  the  certificate  of  the  notary.  In  its 
opinion  the  supreme  court  uses  the  following 
language: 

"He  (the  grantee)  had  a  right  to 
rely  upon  the  certificate  of  the  notary 
and  to  presume  without  question  that 
such  officer  had  done  his  duty.  *  *  * 
The  whole  theory  that  the  record  of 
such  instruments  gives  constructive  no- 
tice of  the  contents  of  recorded  instru- 
ments is  founded  upon  the  proposition 
that  upon  proper  investigation  the  gen- 
uineness of  such  instruments  has  been 
determined.  The  certificate  is  also  re- 
ceived as  evidence  in  a  trial  in  a  court 
of  law  that  the  deed  is  genuine.  If  the 
deed  is  not  genuine  but  is  forged,  the 
notary  and  his  sureties  ought  to  be  held 
for  all  damages  unless  they  have  taken 
the  precautions  expressly  required  by 
the  statute.  The  legislature  has  taken 
great  care,  though  considering  the  im- 
portance of  the  matter,  not  too  great, 
to  make  this  certificate  reliable.  *  *  * 
The  notary  is  expressly  forbidden  to 


NOTARY'S  MANUAL.  25 

take  the  acknowledgment  unless  he 
knows  that  the  person  making  the  ac- 
knowledgment is  the  person  described 
in  the  instrument.  *  *  *  If  he  did 
not  know  this  it  should  have  been 
proven  by  the  oath  of  a  credible  witness, 
whose  name  must  be  stated.  (C.  C., 
Sec.  1189.)  It  is  not  enough  that  the 
person  be  introduced  to  the  notary  by 
a  responsible  person.  If  that  were 
enough  there  would  be  no  purpose  in 
requiring  the  oath,  for  such  person 
could  always  furnish  the  introduction. 
This  point  has  been  often  decided 
though  sufficiently  obvious  from  the 
statute.  To  take  an  acknowledgment 
upon  such  introduction  without  the  oath 
is  negligence  sufficient  to  render  the  no- 
tary liable  in  case  the  certificate  turns 
out  to  be  untrue.  *  *  *  The  same 
matter  was  discussed  in  State  v.  Meyer, 
2  Mo.  App.,  413.  The  court  makes 
some  suggestions  as  to  what  degree  of 
acquaintance  will  authorize  the  notary  to 
certify  that  he  has  personal  knowledge, 
and  also  upon  the  proposition  that  an 
introduction,  even  by  a  responsible  per- 
son, could  not  be  relied  upon,  and^says: 


26  NOTARY'S  MANUAL. 

'It  is  obvious  that  when  an  officer  tak- 
ing an  acknowledgment  and  making  a 
certificate  assumes  any  such  fact,  he 
does  it  at  his  own  risk.  The  law  warns 
him  when  he  has  not  "personal  knowl- 
edge' '  of  his  own  to  resort  to  certain  ob- 
servances which  the  law  supposes  to  be 
sufficient  in  practice  to  prevent  imposi- 
tion. *  *  *  But  such  a  certificate 
is  infinitely  less  liable  to  deceive  or  mis- 
lead than  a  declaration  that  the  party 
making  the  acknowledgment  is  well 
known  to  the  officer  making  the  cer- 
tificate. It  puts  all  persons  upon  in- 
quiry and  furnishes  a  clue  for  conduct- 
ing it;  and  it  complies  with  the  law.' 
This  makes  the  certificate  upon  personal 
knowledge  a  guaranty  of  the  genuine- 
ness of  the  instrument,  and  the  court 
adds:  'It  is  perfectly  idle  for  him  to 
protest  that  he  did  not  know  or  sus- 
pect that  his  certificate  was  false.  That 
may  be  taken  for  granted,  but  is  noth- 
ing to  the  purpose.  His  business  was 
to  know  that  it  was  true.' 

"A  notary  may  take  all  due  precau- 
tions and  fully  comply  with  the  statute 
and  still  be  deceived.  In  such  case  he 


NOTARY'S  MANUAL.  27 

would  not  be  held  liable,  but  if  he  has 
not  fully  complied  with  the  statute,  the 
rule  announced  above  is  not  a  whit  too 
stringent. 

"It  may  here  be  remarked  that  the 
witness  by  whose  oath  the  execution  of 
an  instrument  is  proven  when  the  person 
executing  the  instrument  was  not  pre- 
viously known  to  the  officer,  must  him- 
self be  known  to  the  notary.  This  is 
implied  by  the  requirement  that  the  of- 
ficer shall  certify  that  such  person  is  a 
credible  witness.  When  these  neces- 
sary facts  do  not  exist,  the  notary  is 
expressly  forbidden  from  taking  the  ac- 
knowledgment at  all.  When  the  notary 
does  not  obey  this  statute  he  should  ex- 
pect to  be  held  liable.  And  I  wish  to 
repeat,  these  requirements  are  of  great 
importance  to  the  business  world  and 
not  at  all  too  exacting." 

This  case  further  sets  at  rest  the  fact  that 
notaries  in  taking  acknowledgments  act  minister- 
ially and  not  judicially.  It  appears  that  for 
judicial  acts  officers  are  not  liable  for  either  negli- 
gence or  ignorance,  but  only  for  corrupt  and 
intentional  misconduct  in  the  discharge  of  their 


28  NOTARY'S  MANUAL. 

official  duties;  while,  on  the  other  hand,  minis- 
terial officers  are  liable  in  damages. 

In  the  case  of  Homan  v.  Wayer,  9  Cal.  App.  123, 
the  grantor  named  in  the  deed  was  Mary  E.  Gris- 
wold,  but  the  person  who  acknowledged  the  deed 
was  not  Mary  E.  Griswold  but  one  who  imper- 
sonated her  in  the  execution  and  acknowledg- 
ment of  the  deed.  To  this  deed  the  notary 
attached  his  certificate  in  the  usual  form  wherein 
he  certified  "before  me  *  *  *  personally  appeared 
Mrs.  Mary  E.  Griswold,  a  widow,  known  to  me  to 
be  the  person  whose  name  is  subscribed  to  the 
within  instrument,  and  acknowledged  to  me  that 
she  executed  the  same."  It  was  not  contended 
by  the  notary  that  he  knew  the  woman  whom  he 
certified  to  be  Mary  E.  Griswold.  His  knowledge 
of  her  identity  was  gained  by  an  introduction 
from  a  man  whom  he  did  not  know,  a  re-assur- 
ing remark  or  two  from  this  man,  and  an  "oath" 
administered  to  the  woman  herself  at  the  time 
of  taking  her  acknowledgment.  The  court  said: 

"If  we  were  permitted  to  consider  the 
so-called  'oath'  of  the  woman  as  proof  or 
evidence  upon  which  the  notary  could 
base  his  certificate,  it  did  not  establish 
the  things  which  he  is  required  to  know 
and  certify.  The  essential  fact  to  be 


NOTARY'S  MANUAL.  29 

known  by,  or  proven  to,  the  notary  is 
that  the  person  making  the  acknowledg- 
ment is  the  person  described  in  and  who 
executed  the  instrument.  The  woman 
who  executed  the  deed  was  asked  if  her 
name  was  Mary  E.  Griswold  and  if  she 
was  the  sole  owner  of  the  property.  Her 
name  might  have  been  Mary  E.  Griswold, 
and  she  not  the  person  described  in  the 
deed.  The  notary  is  not  required  to 
certify  to  the  ownership  of  the  property 
*  *  *  and  this  only  indirectly  bore  upon 
the  matter  to  be  certified.  The  purpose 
of  the  certificate  is  to  establish  the  iden- 
tity of  the  grantor  and  the  genuineness 
of  the  signature  to  the  deed.  *  *  * 

"A  certificate  of  personal  knowledge 
is  not  justified  by  swearing  the  person 
who  executed  the  instrument  or  any 
other  person.  The  statute  draws  a  dis- 
tinction between  those  'known'  and  those 
'proven  to  be'  the  individual  described 
in  the  instrument.  In  the  former  case 
no  taking  of  testimony  and  no  'satis- 
factory evidence'  is  required;  it  is  suffi- 
cient that  the  officer  knows.  If  the 
officer  does  not  'know,'  then  the  law 


30  NOTARY'S  MANUAL. 

makes  it  his  duty  to  inform  himself  by 
satisfactory  evidence  on  the  oath  or 
affirmation  of  a  credible  witness.  In  this 
event  he  is  called  upon  to  certify  by 
whose  oath  it  was  proven  to  him  that  the 
person  whose  acknowledgment  was  taken 
is  the  person  described  in  the  instru- 
ment. *  *  * 

"This  is  not  a  case  where  a  mistake 
was  made  through  inadvertence,  or  one 
in  which  due  precaution  was  taken,  the 
statute  fully  complied  with,  and  still 
the  notary  was  deceived.  It  is  not 
within  the  exception  stated  in  the 
Joost-Craig  case,  but  comes  clearly  with- 
in the  rule  of  law  declared  in  the  case  of 
State  v.  Meyer,  2  Mo.  App.  413,  therein 
cited.  ***  " 

The  evidence  in  this  case  showed  that  the 
plaintiff  relied  upon  the  false  certificate  of  the 
notary.  The  various  defenses  made  on  behalf 
of  the  defendant,  namely:  That  there  was  a 
conspiracy  to  defraud  the  owner,  that  the  neglect 
of  the  notary  was  not  the  proximate  cause  of  the 
injury,  and  that  there  was  no  privity  of  contract 
between  the  notary  and  the  person  injured,  were 
of  no  avail,  and  it  was  held  that  the  loss  sustained 


NOTARY'S  MANUAL.  31 

was  the  result  of  official  misconduct  or  neglect 
for  which  the  notary  and  his  sureties  were  liable. 

The  case  of  Kleinpeter  v.  Castro,  11  Cal. 
App.  83,  is  another  case  where  a  notary  made  a 
false  certificate  of  acknowledgment  of  a  forged 
deed  and  was  held  liable  on  his  official  bond  for 
all  damages  sustained. 

SECTION  20.  Introduction  by  third  party  not 
sufficient.  In  addition  to  what  has  been  said 
with  respect  to  mere  introduction  by  third  party 
in  the  preceding  section,  see  also  Hatton  v. 
Holmes,  97  Cal.,  212,  wherein  the  supreme  court 
says  that  a  notary  has  no  right,  in  disregard  of 
the  plain  provision  of  the  statute,  to  certify  that 
he  knows  a  person  whom  he  does  not  know  on 
the  mere  introduction  of  some  third  party,  and 
if  he  does  so,  and  loss  results  therefrom,  he  ren- 
ders himself  and  his  sureties  liable  to  make  good 
the  loss.  This  case  further  holds,  however,  that 
this  liability  does  not  extend  to  a  case  where  the 
negligence  of  the  losing  party  is  the  proximate 
cause  of  the  loss. 

SECTION  21.  Negligence  of  injured  parly  ex- 
cuses notary.  Should  the  injured  party  have 
taken  the  impostor  before  and  introduced  him  to 
the  notary  and  requested  the  notary  to  certify  to 
the  acknowledgment  and  ^execution  of  the  deed 


32  NOTARY'S  MANUAL. 

by  the  impostor,  in  such  case,  while  the  officer 
would  not  have  been  justified,  he  would  have 
been  guilty  of  contributory  negligence  only.9 
For  cases  in  which  the  negligence  of  the  notary 
was  not  the  direct  or  proximate  cause  of  the 
loss  and  he  was  therefore  held  not  liable,  see 
Bank  of  Savings  v.  Murfey,  68  Cal.,  455;  Over- 
acre  v.  Blake,  82  Cal.,  77. 

SECTION  22.  Witness  swearing  falsely  may 
be  prosecuted.  We  have  another  case  (In  re 
Carpenter,  64  Cal.,  271)  where  a  person  appeared 
before  the  notary  for  the  purpose  of  acknowl- 
edging a  deed,  and  the  notary  being  unacquainted 
with  him,  administered  an  oath  to  him  as  a  wit- 
ness in  his  own  behalf  for  the  purpose  of  ascer- 
taining if  he  was  the  person  who  signed  the  deed 
he  wished  to  acknowledge.  Upon  that  evidence 
the  notary  took  the  acknowledgment,  certified 
to  it  and  returned  the  deed  with  his  certificate 
annexed  to  the  person  making  it.  The  court 
held  that  such  party  was  a  competent  witness  in 
his  own  behalf  in  the  proceedings  before  the  no- 
tary and  when  he  testified  falsely  on  the  oath 
administered  to  him  by  the  notary,  he  subjected 
himself  to  prosecution  for  perjury. 


(9)  Joost  v.  Craig,  131  Cal.,  510 


NOTARY'S  MANUAL.  33 

Acknowledgment  by  Married  Women. 

SECTION  23.  A  conveyance  by  a  married 
woman  has  the  same  effect  as  if  she  were  unmar- 
ried and  may  be  acknowledged  in  the  same  man- 
ner. 10  This  is  now  the  law.  Formerly  (prior  to 
1891)  it  was  necessary  that  a  married  woman 
should  be  examined  and  made  acquainted  with 
the  contents  of  the  instrument  apart  from  her 
husband,  and  consequently  a  separate  form  of 
certificate  was  necessary  in  case  of  acknowledg- 
ment by  a  married  woman.  That  law  being  re- 
pealed, the  general  form  of  certificate  is  now 
used. 

Certificate  of  Acknowledgment. 

SECTION  24.  Notary  must  attach.  A  notary 
taking  the  acknowledgment  of  an  instrument 
must  indorse  thereon  or  attach  thereto  his  cer- 
tificate of  acknowledgment,  u  The  form  of  the 
certificate  is  prescribed  by  law  and  a  substan- 
tial compliance  therewith  is  required.  It  is,  of 
course,  well  to  follow  the  form  prescribed  with 
exactness.  However,  where  a  certificate  of 
acknowledgment  was  objected  to  because  the 
officer  certified  that  the  grantor  "acknowledged 
to  me"  the  execution  of  the  instrument  (the 


(10)  Civil  Code.  11187 

(11)  Civil  Code,  SH88 


34  NOTARY'S  MANUAL. 

words  "to  me"  not  being  a  part  of  the  statutory 
form),  the  variation  was  declared  immaterial. 
Again,  where  a  foreign  notary  certified  that  the 
grantor  "appeared  before  me,  being  personally 
known  to  me  to  be  the  same  person  described  in 
and  who  executed  the  foregoing  instrument,  and 
acknowledged  that  he  signed  and  sealed  the 
same  as  his  free  and  voluntary  act  and  deed  for 
the  uses  and  purposes  therein  mentioned,"  this 
was  held  to  be  a  substantial  compliance  with  the 
requirements  of  our  statute.  12 

SECTION  25.  General  form  of.  The  general 
form  of  certificate  of  acknowledgment  is  as  fol- 
lows: 

"State  of ,  County  of ,  ss. 

"On  this day  of ,  in  the  year 

,  before  me  (here  insert  name  and  quality 

of    the    officer),    personally    appeared , 

known  to  me  (or  proved  to  me  on  the  oath  of 
)  to  be  the  person  whose  name  is  sub- 
scribed to  the  within  instrument,  and  acknowl- 
edged that  he  (she  or  they)  executed  the  same."ls 

Appendix  Forms  Nos.  1,  2  and  3.] 


(12)  Holland  v.  Hotchkiss,  162  Cal.,  376-7 

(13)  Civil  Code,  1189 


NOTARY'S  MANUAL.  35 

SECTION  26.     Form  of,   when  acknowledgment 
is  by  corporation. 
"State  of  -       — ,  County  of  -      — ,  ss. 

"On   this day  of ,  in  the  year 

,  before  me  (here  insert  the  name  and  qual- 
ity of  the  officer),  personally  appeared , 

known  to  me  (or  proved  to  me  on  the  oath  of 

)  to  be  the  president  (or  the  secretary) 

of  the  corporation  that  executed  the  within  in- 
strument (where,  however,  the  instrument  is 
executed  in  behalf  of  the  corporation  by  some 
one  other  than  the  president  or  secretary)  in- 
sert known  to  me  (or  proved  to  me  on  the  oath 
of  -  — )  to  be  the  person  who  executed  the 
within  instrument  on  behalf  of  the  corporation 
therein  named  and  acknowledged  to  me  that 
such  corporation  executed  the  same."u 

[Appendix  Forms  Nos.  4,  5  and  6.] 

Prior  to  the  amendment  of  1905  a  conveyance 
by  a  corporation  could  only  be  acknowledged  by 
its  president  or  secretary. 

SECTION  27.     Form  of,  when  acknowledgment 
is  by  attorney  in  fact. 
"  State  of ,  County  of  -       — ,  ss. 

"On  this  -         -  day  of  -       — ,  in  the  year 
— ,  before  me  (here  insert  the  name  and  qual- 

(14)  Civil  Code,  §1190 


36  NOTARY'S  MANUAL. 

ity  of  the  officer),  personally  appeared  - , 

known  to  me  (or  proved  to  me  on  the  oath  of 
)  to  be  the  person  whose  name  is  Bub- 
scribed  to  the  within  instrument  as  the  attorney 

in  fact  of ,  and  acknowledged  to  me  that 

he  subscribed  the  name  of thereto  as 

principal,  and  his  own  name  as  attorney  in 
fact."u 

[Appendix  Form  No.  7.] 

SECTION  28.  When  acknowledgment  is  taken 
outside  of  state.  It  is  expressly  provided  that 
any  acknowledgment  taken  without  this  state  in 
accordance  with  the  laws  of  the  place  where  the 
acknowledgment  is  made,  shall  be  sufficient  in 
this  state;  and  further,  that  the  certificate  of  the 
clerk  of  a  court  of  record  of  the  county  or  dis- 
trict where  such  acknowledgment  is  taken,  that 
the  officer  certifying  to  the  same  is  authorized 
by  law  so  to  do,  and  that  the  signature  of  the 
said  officer  to  such  certificate  is  his  true  and 
genuine  signature,  and  that  such  acknowledgment 
is  taken  in  accordance  with  the  laws  of  the  place 
where  the  same  is  made,  shall  be  prima  facie 
evidence  of  the  facts  stated  in  the  certificate  of 
said  clerk., g 


(15)  Civil  Code,  11192 

(16)  Civil  Code,  §1189 


NOTARY'S  MANUAL.  37 

The  provision  of  the  foregoing  section  in  regard 
to  certificates  of  the  clerk,  is  only  applicable  to 
cases  where  the  certificate  of  the  foreign  notary 
does  not  show  an  acknowledgment  which  would 
be  good  under  our  own  statutes.  17 

When  an  acknowledgment  is  taken  in  this  state 
for  the  purpose  of  being  used  outside  of  the  state, 
such  certificate  of  the  clerk  should  generally  be 
attached. 

SECTION    29.     Venue — Name    and    quality    of 

officer.  "State  of ,  County  of ,  ss." 

at  the  head  of  the  certificate  is  a  part  of  the 
certificate  as  prescribed  by  law.  The  purpose  of 
the  venue  is  to  show  that  the  official  act  was 
done  within  the  territorial  jurisdiction  of  the  of- 
ficer. In  the  case  of  Emeric  v.  Alvarado,  90  Cal., 
463,  a  certificate  is  commented  on  in  which  the 
venue  was  missing  and  the  name  and  quality  of 
the  officer  in  the  body  of  the  certificate  was  left 
blank,  and  it  was  held  that  the  certificate  was 
fatally  defective  because  it  did  not  appear  there- 
from in  what  county  or  state  the  acknowledgment 
was  taken.  In  this  connection  the  court  said: 
"Defects  in  certificates  of  acknowledgment 
should  be  usually  overlooked  as  much  as  possi- 
ble, but  in  this  case  the  defect  is  so  radical  that, 

(17)  Holland  v.  Hotchkiss,  162  Cal.,  377 


38  NOTARY'S  MANUAL. 

so  far  as  we  can  see,  to  condone  it  would  not  be 
in  the  interest  of  justice."  In  the  same  case  (Id., 
p.  478)  another  certificate  is  commented  on  which 
showed  the  venue  in  the  City  and  County  of  San 
Francisco  and  the  official  seal  of  the  notary  at- 
tached showed  that  he  was  not  a  notary  public 
in  and  for  the  City  and  County  of  San  Fran- 
cisco, but  for  the  county  of  Contra  Costa.  The 
court  found  that  the  material  statements  in  the 
certificate  were  not  true  and  it  was  insufficient 
on  its  face. 

SECTION  30.  Signature,  name  of  office  and 
seal.  It  is  further  required  that  officers  taking 
and  certifying  acknowledgments  or  proof  of  in- 
struments for  record,  must  authenticate  their 
certificates  by  affixing  thereto  their  signatures, 
followed  by  the  names  of  their  offices,  and  also 
their  seals  of  office.  18  The  proper  official  name 
of  a  notary  is  "Notary  Public  in  and  for"  the 
county  for  which  he  was  appointed.  In  Duck- 
worth v.  Watsonville  etc.  Co.  150  Cal.  521,  the 
certificate  of  acknowledgment  to  a  deed  recited 
the  name  and  official  character  of  the  notary  as  a 
notary  public  in  and  for  the  county  named,  in  the 
usual  form,  but  was  signed  by  him  merely  with  the 
words  "Notary  Public"  after  his  signature,  and  it 

(18)  Civil  Code,  5H93 


NOTARY'S  MANUAL.  39 

was  objected  that  this  was  not  a  sufficient  state- 
ment of  the  name  of  his  office.  The  court  held, 
however,  in  view  of  the  statement  made  in  the 
body  of  the  certificate,  that  the  name  of  the 
office  was  sufficiently  stated  after  the  signature. 

SECTION  31.  When  not  conclusive.  A  cer- 
tificate of  acknowledgment  is  prima  facie  evi- 
dence of  the  fact  of  acknowledgment;  that  is,  evi- 
dence which  suffices  for  proof  until  contradicted 
and  overcome  by  other  evidence.  It  is  there- 
fore not  conclusive  and  may  be  impeached  by 
parol  evidence  that  the  person  named  therein 
never  in  fact  appeared  before  the  notary  certify- 
ing to  the  acknowledgment.  If  such  is  the  case 
the  act  of  the  officer  is  wholly  void  and  the  cer- 
tificate is  nothing  but  a  fabrication.  So  held  in 
Le  Mesnager  v.  Hamilton,  101  Cal.,  532.  In  this 
case  the  certificate  of  the  notary  showed  upon 
its  face  that  the  instrument  was  duly  acknowl- 
edged by  one  of  the  parties  to  it  who  was  a  mar- 
ried woman,  when,  in  fact,  she  had  never  ap- 
peared before  the  notary  for  the  purpose  of  ac- 
knowledging it.  A  distinction  is  made  between 
a  case  of  this  kind  where  the  officer  is  entirely 
without  authority  and  his  certificate  is  void  in 
toto,  and  one  where  the  party  actually  appeared 
before  the  notary  and  made  some  kind  of  ac- 


40  NOTARY'S  MANUAL. 

knowledgment,  and  an  attempt  is  made  to  at- 
tack the  certificate  because  of  some  defect  in  the 
manner  of  acknowledgment.  Such  a  case  would 
come  within  the  rule  which  makes  the  certificate 
of  acknowledgment  conclusive  in  favor  of  an  in- 
nocent purchaser  in  good  faith  and  who  has  re- 
lied on  the  truth  of  the  certificate.  i9 

Proof  of  Execution  When  Not  Acknowledged 

SECTION  32.  How  made.  Proof  of  the  exe- 
cution of  an  instrument  when  not  acknowledged 
may  be  made,  either  (1)  by  the  party  executing 
it,  or  either  of  them;  (2)  by  a  subscribing  wit- 
ness; or  (3)  by  other  witnesses,  who,  under  cer- 
tain conditions  are  permitted  to  testify  to  the 
handwriting  of  the  party  or  subscribing  witness.  20 
(See  Handwriting,  when  may  be  proved,  Sees. 
35-36,  post.) 

SECTION  33.  Subscribing  witness  defined.  A 
subscribing  witness  is  one  who  sees  a  writing 
executed  or  hears  it  acknowledged,  and  at  the 
request  of  the  party  thereupon  signs  his  name  as 
a  witness.  2  j 

SECTION  34.  By  Subscribing  Witness,  requi- 
sites of.  If  proof  of  the  execution  of  an  instru- 
ment is  made  by  a  subscribing  witness,  such  wit- 

(19)  De  Arnaz  v.  Scandon,  59  Cal.,  486 

(20)  Civil  Code,  |1195 

(31)  Code  of  Civil  Procedure,  {1935 


NOTARY'S  MANUAL.  41 

ness  must  be  personally  known  to  the  officer 
taking  the  proof  to  be  the  person  whose  name 
is  subscribed  to  the  instrument  as  a  witness,  or 
must  be  proved  to  be  such  by  the  oath  of  a  credi- 
ble witness.  22  And  the  subscribing  witness  must 
prove  that  the  person  whose  name  is  subscribed 
to  the  instrument  as  a  party,  is  the  person  de- 
scribed in  it,  and  that  such  person  executed  it, 
and  that  the  witness  subscribed  his  name  thereto 
as  a  witness.  23 

[Appendix  Form  No.  8.] 

SECTION  35.  By  Handwriting,  when  may  be 
made.  The  execution  of  an  instrument  may  be 
established  by  proof  of  the  handwriting  of  the 
party  and  of  a  subscribing  witness,  if  there  is 
one,  in  the  following  cases: 

1.  When  the  parties  and  all  the  subscribing 
witnesses  are  dead;  or 

2.  When  the  parties  and  all  the  subscribing 
witnesses  are  non-residents  of  the  state;  or 

3.  When  the  place  of  their  residence  is  un- 
known to  the  party  desiring  the  proof,  and  can- 
not be  ascertained  by  the  exercise  of  due  dili- 
gence; or 

4.  When    the    subscribing    witness    conceals 
himself,  or  cannot  be  found  by  the  officer  by  the 

(22)  Civil  Code,  J1196 

(23)  Civil  Code.  J1187 


42  NOTARY'S  MANUAL. 

exercise  of  due  diligence  in  attempting  to  serve 
the  subpoena  or  attachment;  or 

5.  In  case  of  the  continued  failure  or  refusal 
of  the  witness  to  testify  for  the  space  of  one  hour 
after  his  appearance.  24  (See  Mode  of  recording 
when  execution  has  been  established  by  proof  of 
handwriting,  Sec.  48,  post.) 

In  Follmer  v.  Rohrer,  158  Cal.  759,  the  point 
was  made  that  the  deed  in  question,  being  neither 
acknowledged  nor  witnessed,  was  not  an  instru- 
ment "entitled  to  be  proved  for  record"  and  that 
the  plaintiffs  had  not,  therefore,  shown  their  right 
under  section  1203  of  the  Civil  Code  (see  Section 
40,  post)  to  a  "judgment  proving  such  instru- 
ment." The  court  there  held  that  under  the 
foregoing  section  providing  that  "the  execution 
of  an  instrument  may  be  established  by  proof 
of  the  handwriting  of  the  party  and  of  a  sub- 
scribing witness,  if  there  is  one,  in  the  following 
cases:  1.  When  the  parties  and  all  the  sub- 
scribing witnesses  are  dead;*  **  "  the  subscrip- 
tion of  a  witness  is  not  necessary  to  the  validity 
of  a  deed,  and  the  language  of  the  section  last 
quoted  carries  the  clear  implication  that  where 
there  is  no  such  witness,  proof  of  the  handwriting 
of  the  party  executing  is  sufficient. 


(24)  Civil  Code,  |1198 


NOTARY'S  MANUAL.  43 

SECTION  36.  What  must  be  proved  by  evi- 
dence of  handwriting.  The  evidence  taken  un- 
der the  preceding  section  must  satisfactorily 
prove  to  the  officer  the  following  facts: 

1.  The  existence  of  one  or  more  of  the  condi- 
tions mentioned  therein;  and 

2.  That  the  witness  testifying  knew  the  per- 
son whose  name  purports  to  be  subscribed  to  the 
instrument  as  a  party,  and  is  well  acquainted 
with  his  signature,  and  that  it  is  genuine;  and 

3.  That  the  witness  testifying  personally  knew 
the  person  who  subscribed  the  instrument  as  a 
witness,  and  is  well  acquainted  with  his  signa- 
ture, and  that  it  is  genuine;  and 

4.  The  place  of  residence  of  the  witness.  2B 

[Appendix  Forms  Nos.  9,  10  and  11.] 

SECTION  37.  Powers  of  officer  taking  proof. 
Officers  authorized  to  take  the  proof  of  instru- 
ments are  authorized  in  such  proceedings: 

1.  To  administer  oaths  or  affirmations. 

2.  To  employ  and  swear  interpreters. 

3.  To  issue  subpoena. 

4.  To  punish  for  contempt.  28 


(25)  Civil  Code,  J1199 

(26)  Civil  Code.  51201 


44  NOTARY'S  MANUAL. 

Certificate  of  Proof. 

SECTION  38.  An  officer  taking  proof  of  the 
execution  of  any  instrument  must,  in  his  cer- 
tificate indorsed  thereon  or  attached  thereto,  set 
forth  all  the  matters  required  by  law  to  be  done 
or  known  by  him,  or  proved  before  him  on  the 
proceeding,  together  with  the  names  of  all  the 
witnesses  examined  before  him,  their  places  of 
residence  respectively,  and  the  substance  of  their 
testimony.  27 

Defective  Certificates. 

SECTION  39.  Notary  may  not  correct.  It  is 
the  duty  of  the  notary  to  take  the  acknowledg- 
ment and  certify  it  as  a  part  of  the  same  trans- 
action. After  taking  the  acknowledgment  and 
making  and  delivering  the  return,  he  is  discharged 
from  all  further  authority  over  the  subject.  28 
Therefore,  if  he  has  made  a  false  or  defective 
certificate  he  cannot  alter  or  amend  it. 

SECTION  40.  Action  to  amend.  But  what  he 
cannot  do  can  be  done  under  the  provisions  of 
Sections  1202  and  1203  of  the  Civil  Code,  which 
provide  that  when  the  acknowledgment  or  proof 
of  the  execution  of  an  instrument  is  properly 
made  but  defectively  certified,  any  party  inter- 

(27)  Civil  Code,  §1200 

(28)  Bours  v.  Zachariah,  11  Cal.,  281 


NOTARY'S  MANUAL.  45 

ested  may  have  an  action  in  the  superior  court 
to  obtain  a  judgment  correcting  the  certificate  ;29 
and  any  person  interested  under  an  instrument 
entitled  to  be  proved  for  record,  may  institute  an 
action  in  the  superior  court  against  the  proper 
parties  to  obtain  a  judgment  proving  such  in- 
strument. 30  A  deed,  although  it  is  neither 
acknowledged  nor  witnessed,  is  an  instrument 
entitled  to  be  proved  for  record., i 

SECTION  41.  Judgment  attached  to  instru- 
ment may  be  recorded.  A  certified  copy  of  such 
a  judgment  showing  the  proof  of  the  instrument 
and  attached  thereto,  entitles  such  instrument  to 
record  with  like  effect  as  if  acknowledged. 3J 


(29)  Civil  Code,  §1202 

(30)  Civil  Code,  §1203 

(31)  Follmer  v.  Rohrer,  158  Cal.  755. 

(32)  Civil  Code,  §1204 


46  NOTARY'S  MANUAL. 


CHAPTER  III. 

RECORDING    OF   INSTRUMENTS. 

§42  Acknowledgment  necessary. 

43-45  What  may  be  recorded  without  acknowledgment. 

46-48  Mode  of  recording. 

49-51  Purpose  and  effect  of  recording. 

52  Effect  of  failure  to  record. 

53  Unrecorded  instrument,  when  valid. 

54  Instruments  to  be  acknowledged  and  recorded. 

Acknowledgment  Necessary. 

SECTION  42.  Any  instrument  affecting  the 
title  to  or  possession  of  real  property  may  be  re- 
corded— unless  it  belongs  to  one  of  the  classes 
expressly  excepted  from  the  rule  (see  What  may 
be  recorded  without  acknowledgment,  Sees.  43- 
45,  post) — when  and  only  when  its  execution 
has  been  acknowledged  by  the  person  executing 
it,  or,  if  executed  by  a  corporation,  by  its  presi- 
dent or  secretary  or  other  person  executing  it  on 
behalf  of  the  corporation,  or  proved  by  a  sub- 
scribing witness,  or  the  execution  established  by 
proof  of  the  handwriting,  and  the  acknowledg- 
ment or  proof  certified  as  prescribed  by  law  and 
as  set  forth  in  the  foregoing  chapter.  t  The  stat- 


(1)  Civil  Code,  JJ1158,  1161 


NOTARY'S  MANUAL.  47 

ute  is  mandatory  and  these  steps  must  be  taken 
before  an  instrument  can  be  recorded. 

What  May  Be  Recorded  Without  Acknowledgment. 

SECTION  43.  Judgments.  Judgments  affect- 
ing the  title  to  or  possession  of  real  property 
authenticated  by  the  certificate  of  the  clerk  of 
the  court  in  which  such  judgments  were  ren- 
dered (and  notices  of  location  of  mining  claims) 
may  be  recorded  without  acknowledgment  or 
further  proof. 2  Also,  as  we  have  seen,  a  judg- 
ment obtained  in  an  action  brought  for  the  pur- 
pose of  correcting  a  defective  certificate  of  ac- 
knowledgment, when  attached  to  the  instrument, 
entitles  the  same  to  record.  (See  Judgment  at- 
tached to  instrument  may  be  recorded,  Sec.  41, 
supra.) 

SECTION  44.  Letters  patent.  Letters  patent 
from  the  United  States  or  from  the  state  of 
California,  executed  and  authenticated  pursuant 
to  existing  law,  may  be  recorded  without  ac- 
knowledgment or  further  proof.  3  This  refers 
only  to  the  recording  of  letters  patent  affecting 
real  property;  letters  patent  for  an  invention  are, 
of  course,  not  entitled  to  record. 


(2)  Civil  Code.  81159 

(3)  Civil  Code,  J1160 


48  NOTARY'S  MANUAL. 

SECTION  45.  Certificates  of  residence.  Any 
person,  firm,  or  corporation,  may  record  in  the 
office  of  the  county  recorder  of  any  county  in  the 
state  of  California  a  certificate  setting  forth  the 
name  of  said  person,  firm,  or  corporation,  and 
the  place  of  residence  of  said  person,  firm,  or 
corporation,  and  the  place  where  service  of  sum- 
mons may  be  made  upon  said  person,  firm,  or 
corporation.  The  said  certificate  must  be  veri- 
fied by  the  oath  of  the  person,  or  of  a  member 
of  the  firm,  or  officer  of  the  corporation  making 
the  same,  and  may  be  recorded  without  acknowl- 
edgment. Such  person,  firm,  or  corporation  may 
upon  a  change  of  place  of  residence  file  affidavit 
as  herein  provided  and  such  last  affidavit  filed 
shall  be  the  place  designated  as  the  place  where 
service  of  summons  may  be  made  as  herein  pro- 
vided. The  fee  of  the  recorder  for  recording 
said  certificate  shall  be  fifty  cents;  and  the  re- 
corder shall  keep  in  his  office  an  index  entitled 
"Index  to  Certificates  of  Residence,"  in  which 
must  be  entered  the  name  of  the  person,  firm,  or 
corporation  in  whose  behalf  said  certificate  was 
filed.  4 


(4)  Civil  Code,  J1163 


NOTARY'S  MANUAL.  49 

Mode  of  Recording. 

SECTION  46.  Instrument  must  be  recorded 
where.  The  instrument  must  be  recorded  in  the 
office  of  the  county  recorder  of  the  county  in 
which  the  real  property  affected  is  situated.  The 
different  classes  of  instruments  are  recorded  in 
different  sets  of  books.  5 

SECTION  47.  When  deemed  recorded.  The 
instrument  is  deemed  to  be  recorded  when,  be- 
ing duly  acknowledged  or  proved  and  certified, 
it  is  deposited  with  the  proper  officer  for  record.. 
The  time  of  recording  is  endorsed  on  the  instru- 
ment when  deposited,  and  is  important,  as  it 
gives  constructive  notice  from  the  moment  it  is 
filed  with  the  recorder.  (See  Constructive  no- 
tice, Sec.  49,  post.) 

SECTION  48.  When  execution  is  established 
by  proof  of  handwriting.  When  the  execution  of 
an  instrument  is  established  by  proof  of  hand- 
writing (see  Proof  by  handwriting  when  may  be 
made,  Sees.  35,  36),  the  instrument,  though  prop- 
erly proved  and  certified  according  to  law,  may 
only  be  recorded  in  the  proper  office  if  the  origi- 
nal is  at  the  same  time  deposited  therein  to  re- 
main for  public  inspection.7 


(5)  Civi 
(8)  Civi 
(7)  Civi 


Civil  Code,  }§116fl,  1171 
Civil  Code.  11170 
Civil  Code,  $1162 


50  NOTARY'S  MANUAL. 

Purpose  and  Effect  of  Recording. 

SECTION  49.  Constructive  notice.  Every  con- 
veyance of  real  property,  acknowledged  or 
proved,  and  certified  and  recorded,  from  the  time 
it  is  filed  with  the  recorder  for  record,  is  con- 
structive notice  of  the  contents  thereof  to  subse- 
quent purchasers  and  mortgagees  ;8  and  such  no- 
tice is  conclusive,  except  that  it  has  been  held 
that  this  language  only  contemplates  conveyances 
by  persons  having  title,  and  does  not  apply  to  a 
deed  by  a  stranger.  9  Until  so  filed  for  record  the 
instrument  is  void  as  against  subsequent  bona 
fide  purchasers  or  mortgagees  without  notice. 
(See  effect  of  Failure  to  Record,  Sec.  52,  post,  and 
Unrecorded  Instrument,  when  valid,  Sec.  53, 
post.) 

SECTION  50.  Certified  copy  may  be  recorded 
in  another  county.  A  certified  copy  of  any  such 
recorded  conveyance  may  be  recorded  in  any 
other  county,  and  when  so  recorded  the  record 
thereof  shall  have  the  same  force  and  effect  as 
though  it  was  of  the  original  conveyance,  and 
where  such  original  conveyance  has  been  recorded 
in  any  county  wherein  the  property  therein 
mentioned  is  not  situated,  a  certified  copy  of 


(8)  Civil  Code,  §1213 
(») 


Bothin  v.  Cal.  Title  Ina.  Co.  153  Cal.  724 


STATB  TMACHERS  COUL' 
AMTA   BARBARA,  CA1  • 


NOTARY'S  MANUAL.  51 

such  recorded  conveyance  may  be  recorded  in 
the  county  where  such  property  is  situated  with 
the  same  force  and  effect  as  if  the  original  con- 
veyance had  been  recorded  in  such  county.  10 

SECTION  51.  Record  of  instrument  may  be 
used  in  evidence.  It  is  further  provided  that  the 
original  record  of  such  conveyance  or  instru- 
ment, acknowledged  or  proved  and  certified  as 
provided  by  law,  or  a  certified  copy  of  the  record 
of  such  conveyance  or  instrument  thus  acknowl- 
edged or  proved,  may  be  read  in  evidence  on  a 
trial  in  court  with  like  effect  as  the  original  in- 
strument, without  further  proof.  u 

Effect  of  Failure  to  Record. 

SECTION  52.  Every  conveyance  of  real  prop- 
erty, other  than  a  lease  for  a  term  not  exceeding 
one  year,  is  void  as  against  any  subsequent  pur- 
chaser or  mortgagee  of  the  same  property,  or 
any  part  thereof,  in  good  faith  and  for  a  valua- 
ble consideration,  whose  conveyance  is  first  duly 
recorded,  and  as  against  any  judgment  affecting 
the  title,  unless  such  conveyance  shall  have  been 
duly  recorded  prior  to  the  record  of  notice  of 
action,  and  the  term  "conveyance"  as  used  here, 
embraces  every  instrument  in  writing  by  which 

(10)  Civil  Code,  §|1213,  1218. 

(11)  Code  of  Civil  Procedure,  81951 


52  NOTARY'S  MANUAL. 

any  estate  or  interest  in  real  property  is  created, 
aliened,  mortgaged  or  encumbered.  u 

Consequently,  a  deed  of  land  executed  prior 
to  a  mortgage  of  the  same  land  to  another  party, 
but  recorded  after  the  mortgage,  is  subject  and 
subsequent  to  the  mortgage  if  the  mortgagee 
took  in  good  faith,  for  value,  and  without  actual 
notice  of  the  deed;12  and  a  subsequent  mortgage 
first  recorded,  takes  precedence  over  a  prior 
unrecorded  mortgage,  if  taken  in  good  faith  and 
for  a  valuable  consideration,  without  notice.  13 

Unrecorded  Instrument,  When  Valid. 

SECTION  53.  An  unrecorded  instrument  is 
valid,  as  between  the  parties  thereto  and  those 
who  have  notice  thereof.  14  Therefore,  a  purchaser 
with  notice  of  another's  claim  cannot  take  advan- 
tage of  the  fact  that  the  conveyance  under  which 
the  other  claims  was  not  recorded.  15  The  rule 
as  to  what  constitutes  notice  is,  that  notice  of 
facts  sufficient  to  put  one  upon  inquiry  is  notice 
of  all  the  facts  to  which  inquiry  would  lead. 
Hence,  possession  is  notice  to  all  the  world  of  the 
holder's  rights,  and  it  has  been  held  that  one  who 


(11)  Civil  Code,  §§1214,  1215;  Warnock  v.  Harlow,  96  Cal.,  306 

(12)  Emeric  v.  Alvarado,  90  Cal.,  444 

(13)  Odd  Fellows'  Sav.  Bk.  v.  Bouton,  46  Cal.,  605 

(14)  Civil  Code,  §1217 

(15)  Robinson  v.  Muir,  151  Cal.  122 


NOTARY'S  MANUAL.  53 

purchases  land  in  the  possession  of  a  third  person, 
has  no  right  to  rely  on  the  record  title  alone  in 
making  the  purchase,  but  is  bound  to  look  beyond 
the  record  title  for  the  purpose  of  ascertaining 
what  rights,  if  any,  the  party  in  possession  has  in 
the  premises.  18  In  another  case,  where  a  person 
about  to  make  a  loan  and  take  a  mortgage  upon 
land  as  security  employed  an  agent  to  make  the 
negotiation,  a  declaration  made  by  a  tenant  in 
possession  to  the  agent  that  another  person  had 
an  interest  in  the  land,  was  sufficient  to  put  the 
mortgagee  on  inquiry,  and  if  he  failed  to  make 
such  inquiry,  the  mortgage  was  subject  to  the 
rights  of  such  other  person  in  the  land  even 
though  the  paper  title  appeared  to  be  in  the 
mortgagor.  n 

Instruments  to  be  Acknowledged  and  Recorded. 

SECTION  54.  As  one  of  the  duties  of  notaries 
(see  Duties,  Sec.  5,  sub.  2,  supra)  is,  "to  take 
the  acknowledgment  or  proof  of  powers  of  at- 
torney, mortgages,  deeds,  grants,  transfers,  and 
other  instruments  of  writing,  executed  by  any 
person,  and  to  give  a  certificate  of  such  proof  or 
acknowledgment  indorsed  on  or  attached  to  the 
instrument,"  and  as  such  officers  are  frequently 


(16)  Security,  etc.  Co.  v.  Willamette,  etc.  Co.,  99  Cal.,  636;  Pollard  v. 
Rebman,  162  Cal.,  633;  Shurtleff  v.  Kehrer,  163  Cal.,  24 

(17)  Bauer  v.  Pieraon,  46  Cal.,  293 


54  NOTARY'S  MANUAL. 

called  upon  to  draw  these  instruments,  as  well  as 
constantly  required  to  handle  them,  the  next  three 
chapters  on  deeds,  mortgages,  and  homesteads 
will  set  forth  the  general  law  governing  these 
instruments. 


NOTARY'S  MANUAL.  55 


CHAPTER  IV. 

DEEDS. 

§55        Definitions. 
56        Must  be  in  writing. 
57-61  Form  and  contents  of. 
62-65  Execution. 
66-68  Power  of  attorney. 
69-72  Delivery. 
73        Interpretation  of. 
74-77  Effect  of. 

78        Instrument  made  with  intent  to  defraud,  when 
void. 

Definitions. 

SECTION  55.  A  deed  is  a  written  instrument 
executed  and  delivered,  by  which  the  title  and 
possession  of  real  property  is  transferred  from 
one  person  to  another.  It  is  described  in  the 
Civil  Code  as  a  "grant  of  an  estate  in  real  prop- 
erty." A  "grant,  bargain  and  sale"  deed  is,  as 
the  name  implies,  a  grant  by  way  of  bargain  and 
sale.  This  form  of  deed  imports  a  transfer  and 
delivery  of  property  by  one  person  to  another 
for  a  consideration  agreed  upon  between  them 
as  the  value  of  the  property,  and  the  words 
"grant,  bargain  and  sell"  imply  a  general  war- 
ranty that  the  grantor  has  done  no  act  by  which 
the  estate  conveyed  by  him  can  be  defeated.  (See 
Implied  covenants,  Sec.  77,  post.)  A  "gift" 


56  NOTARY'S  MANUAL. 

deed  is  a  voluntary  transfer  of  property  without 
any  consideration  or  compensation.  The  con- 
sideration recited  in  the  established  form  of  gift 
deed  is,  "love  and  affection  which  the  party  of 
the  first  part  has  and  bears  unto  the  party  of  the 
second  part,  as  also  for  the  better  maintenance, 
support,  protection  and  livelihood  of  the  party 
of  the  second  part."  A  "quit-claim"  deed  only 
purports  to  pass  whatever  title,  or  apparent  title, 
the  grantor  has  in  the  property  conveyed.  By  a 
"warranty"  deed  the  grantor  warrants  and 
agrees  to  defend  the  title.  A  conveyance  may 
be  to  a  person  in  trust,  for  the  purpose  of  per- 
forming certain  specified  acts,  and  the  instru- 
ment is  then  called  a  "deed  of  trust." 

Must  Be  in  Writing. 

SECTION  56.  An  estate  in  real  property,  other 
than  an  estate  at  will  or  for  a  term  not  exceeding 
one  year,  can  be  transferred  only  by  operation 
of  law,  or  by  an  instrument  in  writing,  sub- 
scribed by  the  party  disposing  of  the  same,  or  by 
his  agent  thereunto  authorized  by  writing,  i 

Under  the  statute  of  frauds,  any  agreement 
that  by  its  terms  is  not  to  be  performed  within 
a  year  from  the  making  thereof,  is  invalid  unless 
put  in  writing^  and  the  supreme  court  has  held 

(1)  Civil  Code,  §1091 

(2)  Civil  Code,  §1624,  sub.  1 


NOTARY  8    MANUAL.  57 

that  if  the  time  from  the  making  of  the  agree- 
ment to  the  end  of  its  performance  exceeds  a 
year  ever  so  little,  this  statute  applies,  and 
consequently  an  oral  lease  for  one  year  to  com- 
mence in  futuro  is  void.3  An  agreement  author- 
izing or  employing  an  agent  or  broker  to  purchase 
or  sell  real  estate  for  compensation  or  a  commis- 
sion must  also  be  in  writing.  4 

Form  and  Contents  of. 

SECTION  57.  Code  form.  The  code  form  of  a 
grant  of  real  property  is  as  follows: 

"I,  A  B,  grant  to  C  D  all  that  real  property 
situated  in  (insert  name  of  county)  county,  state 
of  California,  bounded  (or  described)  as  follows: 
(here  insert  description,  or  if  the  land  sought  to 
be  conveyed  has  a  descriptive  name,  it  may  be 
described  by  the  name,  as,  for  instance,  'The 
Norris  Ranch'). 

"Witness  my  hand,  this  (insert  day)  day  of 
(insert  month),  19—.  A  B."8 

It  is  customary  in  drawing  deeds  to  use  the 
printed  forms  which  are  in  common  use,  and 
which  are  generally  safe.  It  is  then  only  neces- 


(3)  Wickson  v.  Monarch  Cycle  Mfg.  Co.,  128  Cal.,  153 

(4)  Civil  Code,  11624,  Sub.  6 

(5)  Civil  Code.  §1092 


58  NOTARY'S  MANUAL. 

sary  to  fill  in  the  date,  parties,  consideration  and 
description  of  property. 

SECTION  58.  Parties.  The  parties  to  the  in- 
strument should  be  named  and  described.  A 
deed  which  does  not  contain  the  name  of  the 
grantee  would  be  void  as  a  conveyance.  If  the 
grantee  is  misnamed  the  grantor  cannot  by  a 
subsequent  deed  correct  an  error  in  the  grantee's 
name.  6  Furthermore,  a  deed  is  void  unless  the 
grantee  named  is  a  person,  either  natural  or 
artificial,  capable  of  taking  the  property  con- 
veyed;? hence,  a  deed  to  the  estate  of  a  deceased 
person  is  a  nullity,  as  the  estate  cannot  be  recog- 
nized as  a  party  to  a  contract^  Neither  should 
there  be  any  variance  between  the  name  of  the 
grantor  as  it  appears  in  the  body  of  the  deed  and 
the  signature.  In  case  the  grantor  has,  since  ac- 
quiring the  property,  changed  his  or  her  name 
from  any  cause,  the  conveyance  should  set  forth 
the  name  in  which  the  title  to  the  property  stands 
as  well  as  his  or  her  present  name.8 

SECTION  59.  Consideration.  A  consideration 
need  not  be  expressed  in  a  deed.  It  is  usual  to 
recite  a  consideration,  however,  even  though  it 

(6)  Walters  v.  Mitchell,  6  Cal.  App.  410 

(7)  Rixford  v.  Zei?ler,  150  Cal.,  435 

(8)  Simmons  v.  Spratt,  1  So.  (Fla.),  860;  Mclnerney  v.  Beck,  39  Pac. 
(Wash.),  130 

(9)  Civil  Code,  §1096 


NOTARY'S  MANUAL.  59 

be  a  nominal  one.  In  this  state  a  written  in- 
strument is  presumptive  evidence  of  a  considera- 
tion. Either  party  may  show  what  the  real  con- 
sideration was. 

SECTION  60.  Words  of  inheritance.  Words 
of  inheritance  or  succession  are  not  requisite  to 
transfer  a  fee  in  real  property,  10  but  they,  too,  are 
usually  inserted. 

SECTION  61.  Description  of  property.  Great 
care  should  be  taken  to  have  the  description  of 
property  minute  and  accurate.  An  error  in  the 
description  is  sure  to  cause  future  annoyance 
and  trouble.  Should  an  error  inadvertently  be 
made  in  the  description  it  can  be  corrected  by  a 
subsequent  deed  between  the  same  parties.  In 
such  subsequent  deed  a  statement,  showing  the 
purpose  of  the  deed,  should  be  inserted  after 
the  habendum  clause;  as,  for  instance,  "This 
deed  is  made  for  the  purpose  of  correcting  an 
error  in  the  description  of  property  contained 
in  that  certain  deed  (describing  it),  and  to  make 
such  description  more  definite  and  certain." 
As  before  stated,  however,  a  correction  deed 
cannot  be  used  to  correct  an  error  in  the  grantee's 
name.  (See  Parties,  Sec.  58,  ante.) 

(10)  Civil  Code,  J1072 


60  NOTARY'S  MANUAL. 

Execution. 

SECTION  62.  In  general.  The  deed  should  be 
subscribed  by  the  grantor,  and  when  subscribed 
should  be  acknowledged  as  provided  in  the  chap- 
ter on  "Acknowledgment  and  Proof  of  Instru- 
ments." 

SECTION  63.  By  person  who  cannot  write. 
The  word  "signature"  or  "subscription"  in- 
cludes mark,  and  when  a  person  cannot  write, 
he  may  make  his  mark  and  his  name  may  "be 
written  near  it  by  a  person  who  writes  his  own 
name  as  a  witness.  It  is  provided,  however,  that 
when  a  signature  is  by  mark,  it  must,  in  order 
that  the  same  may  be  acknowledged  or  may  serve 
as  the  signature  to  any  sworn  statement,  be  wit- 
nessed by  two  persons  who  must  subscribe  their 
own  names  as  witnesses  thereto.  n  This  applies 
to  all  written  instruments,  and  notaries  are  fre- 
quently called  upon  to  sign  for  and  take  the  ac- 
knowledgment of  persons  who  cannot  write.  It 
is  usual  in  such  cases  to  make  the  statement  that 

" ,  being  unable  to  write  his  name,  has 

made  his  mark,  and  I,  at  his  request  and  in  his 
presence,  have  written  his  name  for  him  near 
his  mark,  and  now  sign  my  own  name  as  a 
witness,"  and  have  the  same  attested  by  two 
other  witnesses. 


(11)  Coda  of  Civil  Procedure,  |17 


*TAT*  TEACHERS  COv 
-/•,WTA    WARBARA.  C 


NOTARY'S  MANUAL.  61 

SECTION  64.  By  attorney  in  fact.  When  an 
attorney  in  fact  executes  an  instrument  transfer- 
ring an  estate  in  real  property,  he  must  sub- 
scribe the  name  of  his  principal  to  it,  and  his 
own  name  as  attorney  in  fact.12  (See  Power  of 
attorney,  Sees.  66-68,  post.) 

SECTION  65.  By  married  women.  A  grant 
or  conveyance  of  real  property  made  by  a  mar- 
ried woman  may  be  made,  executed,  and  ac- 
knowledged in  the  same  manner  and  has  the  same 
effect  as  if  she  were  unmarried,  u 

Power  of  Attorney. 

SECTION  66.  Defined.  "Power  of  attorney" 
indicates  that  a  power  or  authority  is  conferred. 
It  is  an  instrument  by  which  the  authority  of  one 
person  to  act  in  the  place  and  stead  of  another  is 
set  forth.  It  must  be  in  writing,  subscribed,  ac- 
knowledged or  proved,  certified  and  recorded.  A 
general  power  of  attorney  confers  power  to  act 
generally;  a  special  power  of  attorney  confers 
power  to  perform  some  particular  act. 

SECTION  67.  By  married  women.  A  mar- 
ried woman  may  make,  execute,  and  revoke  pow- 
ers of  attorney  for  the  sale,  conveyance,  or  en- 

(12)  Civil  Code,  §1095 

(13)  Civil  Code,  }1093 


62  NOTARY'S  MANUAL. 

cumbrance  of  her  real  or  personal  estate,  which 
shall  have  the  same  effect  as  if  she  were  unmar- 
ried, and  may  be  acknowledged  in  the  same  man- 
ner as  a  grant  of  real  property.  14 

SECTION  68.  Revocation  of.  No  instrument 
containing  a  power  to  convey  or  execute  instru- 
ments affecting  real  property,  which  has  been 
recorded,  is  revoked  by  any  act  of  the  party  by 
whom  it  was  executed,  unless  the  instrument  con- 
taining such  revocation  is  also  acknowledged  or 
proved  and  certified,  and  recorded  in  the  same  of- 
fice in  which  the  instrument  containing  the  power 
was  recorded.  15 

Delivery  of  Deed. 

SECTION  69.  Necessity  of.  A  grant  takes  ef- 
fect so  as  to  vest  the  interest  intended  to  be  trans- 
ferred, only  upon  its  delivery  by  the  grantor.  18 
Delivery  is  essential  to  give  the  conveyance  legal 
effect,  and  a  valid  delivery  is  only  made  when 
the  conduct  and  acts  of  the  grantor  manifest  a 
present  intent  to  dispose  of  the  title  conveyed. 
A  delivery  merely  for  the  purpose  of  safe  keep- 
ing or  custody  is  not  such  a  delivery.  i7  Further, 
a  deed  cannot  be  delivered  conditionally. 

(H)  Civil  Code,  §1094 

(15)  Civil  Code.  §1216 

(16)  Civil  Code,  §1054 

(17)  Follmer  v.  Rohrer,  158  Cal.,  755 


NOTARY'S  MANUAL.  63 

Delivery  to  the  grantee,  or  to  his  agent  as  such, 
is  necessarily  absolute,  and  the  instrument  takes 
effect  thereupon,  is  A  grant  duly  executed  is 
presumed  to  have  been  delivered  at  its  date.i9 
It  is  well  settled  that  delivery  is  not  complete 
until  the  grantor  has  so  dealt  with  the  instrument 
that  he  has  lost  all  control  over  it.  Therefore, 
if  a  person  should  make  a  deed  and  duly  acknowl- 
edge it  before  a  notary  public,  but  keep  it  in 
his  possession  and  die  without  having  delivered 
it,  the  deed  is  of  no  effect.  (See  Redelivery, 
Sec.  72,  post.) 

SECTION  70.  In  Escrow.  The  law  provides 
for  the  delivery  of  a  deed  in  escrow,  thus:  A 
grant  may  be  deposited  by  the  grantor  with  a 
third  person,  to  be  delivered  on  performance 
of  a  condition,  and,  on  delivery  by  the  depositary, 
it  will  take  effect.  While  in  the  possession  of  the 
third  person,  and  subject  to  condition,  it  is 
called  an  escrow.  20  On  the  performance  of  the 
condition  it  becomes  incumbent  on  the  depositary 
to  make  delivery.  The  grantor  must  have  in- 
tended to  part  with  the  possession  for  all  time, 
and  cannot  revoke  it  after  delivery  in  escrow. 21 


(18)  Civil  Co<Ie,  $1050 

(19)  Civil  Code,  §1055 

(20)  Civil  Code,  §1057 

(21)  McDonald  v.  Huff,  77  Cal..  279 


64  NOTARY'S  MANUAL. 

SECTION  71.  Constructive  delivery.  Though 
a  deed  be  not  actually  delivered  into  the  posses- 
sion of  the  grantee,  it  is  yet  to  be  deemed  con- 
structively delivered  in  the  following  cases : 

1.  Where  the  instrument  is,  by  the  agreement 
of  the  parties  at  the  time  of  execution,  under- 
stood to  be  delivered,  and  under  such  circum- 
stances that  the  grantee  is  entitled  to  immediate 
delivery;  or 

2.  Where  it  is  delivered  to  a  stranger  for  the 
benefit  of  the  grantee,  and  his  assent  is  shown, 
or  may  be  presumed.  22 

SECTION  72.  Redelivery.  Redelivering  a 
grant  of  real  property  to  the  grantor,  or  cancel- 
ing it,  does  not  operate  to  retransfer  the  title. 23 
It  can  only  be  retransferred  by  an  instrument  as 
formal  as  the  one  transferring  it. 

Interpretation  of. 

SECTION  73.  In  the  construction  of  a  deed 
the  understanding  and  intention  of  the  parties 
should  be  ascertained,  and  for  this  purpose  the 
whole  of  the  instrument  should  be  consid- 
ered. 2<  A  clear  and  distinct  provision  in  a 
grant  is  not  controlled  by  other  words  less  clear 
and  distinct.  If  the  operative  words  of  a  grant 

(22)  Civil  Code,  $1059 

(23)  Civil  Code,  $1058 

(24)  Stockton  v.  Weber,  98  Cal.,  433 


NOTARY'S  MANUAL.  65 

are  doubtful,  recourse  may  be  had  to  its  recitals 
to  assist  the  construction. 

It  is  to  be  interpreted  in  favor  of  the  grantee, 
except  that  a  reservation  in  any  grant,  and  every 
grant  by  a  public  officer  or  body,  as  such,  to  a 
private  party,  is  to  be  interpreted  in  favor  of 
the  grantor. 

If  several  parts  are  absolutely  irreconcilable, 
the  former  part  prevails. 

Where  a  future  interest  is  limited  to  take  ef- 
fect on  the  death  of  any  person  without  heirs,  or 
heirs  of  his  body,  or  without  issue,  or  in  equiva- 
lent words,  such  words  must  be  taken  to  mean 
successors,  or  issue  living  at  the  death  of  the  per- 
son named  as  ancestor.2l 

Effect  of. 

SECTION  74.  What  passes.  A  fee-simple  title 
is  presumed  to  be  intended  to  pass  by  a  grant  of 
real  property,  unless  it  appears  from  the  grant 
that  a  lesser  estate  was  intended.  Where  a  per- 
son purports  by  proper  instrument  to  convey  real 
property  in  fee  simple,  without  expressly  restrict- 
ing the  conveyance  to  any  particular  interest 
therein,  and  subsequently  acquires  any  title,  or 
claim  of  title  thereto,  the  same  passes  by  opera- 

(25)  Civil  Code.  {{1067-1071;  Pavkovich  v.  S.  P.  R.  R.  Co.  150 
Cal.  45 


66  NOTARY'S  MANUAL. 

tion  of  law  to  the  grantee,  or  his  successors.  2G 
Even  if  the  grantor  had  no  title  whatever  to 
land  at  the  time  he  executed  a  grant,  bargain, 
and  sale  deed  of  it  purporting  to  convey  the  fee, 
any  title  he  afterwards  acquired  would  pass  to 
his  grantee  under  such  deed.27  This  is  not  true 
of  a  quit-claim  deed.  As  a  rule,  a  quit-claim 
deed  does  not  carry  after-acquired  title.  A  grant 
made  by  the  owner  of  an  estate  for  life  or  years, 
purporting  to  transfer  a  greater  estate  than  he 
could  lawfully  transfer,  does  not  work  a  for- 
feiture of  his  estate,  but  passes  to  the  grantee 
all  the  estate  which  the  grantor  could  lawfully 
transfer.  28  A  transfer  of  real  property  passes 
all  easements  attached  thereto,  and  creates  in 
favor  thereof  an  easement  to  use  other  real  prop- 
erty of  the  person  whose  estate  is  transferred 
in  the  same  manner  and  to  the  same  extent  as 
such  property  was  obviously  and  permanently 
used  by  the  person  whose  estate  is  transferred, 
for  the  benefit  thereof,  at  the  time  when  the 
transfer  was  agreed  upon  or  completed. 29  A 
transfer  of  land,  bounded  by  a  highway,  passes 
the  title  of  the  person  whose  estate  is  transferred 
to  the  soil  of  the  highway  in  front  to  the  center 


(26)  Civil  Code,  §§1105,  1106 

(27)  Cecil  v.  Gray,  170  Cal.,  137 

(28)  Civil  Code,  §1108 

(29)  Civil  Code,  §§1104,  1084 


NOTARY'S  MANUAL.  67 

thereof,  unless  a  different  intent  appears  from 
the  grant. 30  Where  a  grant  is  made  upon  con- 
dition subsequent,  and  is  subsequently  defeated 
by  the  non-performance  of  the  condition,  the  per- 
son otherwise  entitled  to  hold  under  the  grant 
must  reconvey  the  property  to  the  grantor  or  his 
successors,  by  grant  duly  acknowledged  for  rec- 
ord. An  instrument  purporting  to  be  a  grant  of 
real  property,  to  take  effect  upon  condition  pre- 
cedent, passes  the  estate  upon  the  performance  of 
the  condition. 21 

SECTION  75.  As  to  tenants.  Grants  of  rents 
or  of  reversions  or  of  remainders  are  good  and 
effectual  without  attornments  of  the  tenants;  but 
no  tenant  who,  before  notice  of  the  grant,  shall 
have  paid  rent  to  the  grantor  must  suffer  any 
damage  thereby.32 

SECTION  76.  How  far  conclusive.  Every 
grant  of  an  estate  in  real  property  is  conclusive 
against  the  grantor,  also  against  every  one  sub- 
sequently claiming  under  him,  except  a  purchaser 
or  encumbrancer  who  in  good  faith  and  for  a 
valuable  consideration  acquires  a  title  or  lien  by 
an  instrument  that  is  first  duly  recorded. 33  (See 
Effect  of  failure  to  record,  Sec.  52,  supra.) 

(30)  Civil  Code,  §1112 

(31)  Civil  Code,  §§1109,  1110 
'32)  Civil  Code,  §1111 

(33)  Civil  Code,  §1107 


68  NOTARY'S  MANUAL. 

SECTION  77.  Implied  covenants.  From  the 
use  of  the  word  "grant"  in  any  conveyance  by 
which  an  estate  of  inheritance  or  fee-simple  is  to 
be  passed,  the  following  covenants,  and  none 
other,  on  the  part  of  the  grantor,  for  himself  and 
his  heirs,  to  the  grantee,  his  heirs  and  assigns,  are 
implied,  unless  restrained  by  express  terms  con- 
tained in  such  conveyance: 

1.  That,  previous  to  the  time  of  the  execution 
of  such  conveyance,  the  grantor  has  not  con- 
veyed the  same  estate,  or  any  right,  title,  or  in- 
terest therein,  to   any  person  other  than  the 
grantee. 

2.  That  such  estate  is  at  the  time  of  the  exe- 
cution  of   such   conveyance   free  from   encum- 
brances done,  made,  or  suffered  by  the  grantor, 
or  any  person  claiming  under  him. 

Such  covenants  may  be  sued  upon  in  the  same 
manner  as  if  they  had  been  expressly  inserted  in 
the  conveyance.  34 

Instrument  Made  with  Intent  to  Defraud,  When  Void. 

SECTION  78.  Every  instrument,  other  than  a 
will,  affecting  an  estate  in  real  property,  includ- 
ing every  charge  upon  real  property,  or  upon  its 
rents  or  profits,  made  with  intent  to  defraud  prior 

(34)  Civil  Code,  ill  13 


NOTARY'S  MANUAL.  69 

or  subsequent  purchasers  thereof,  or  encumbranc- 
ers thereon,  is  void  as  against  every  purchaser  or 
encumbrancer,  for  value,  of  the  same  property,  or 
the  rents  or  profits  thereof.  But  no  instrument 
is  to  be  avoided  hereunder  in  favor  of  a  subse- 
quent purchaser  or  encumbrancer  having  notice 
thereof  at  the  time  his  purchase  was  made,  or 
his  lien  acquired,  unless  the  person  in  whose 
favor  the  instrument  was  made  was  privy  to  the 
fraud  intended. « 


(35)  Civil  Code,  IJ1227.  1228 


70  NOTARY'S  MANUAL. 


CHAPTER  V. 


MORTGAGES. 

§79  Nature  of  mortgages  in  general. 

80  Possession  of  the  property. 

81  Transfer  when  a  mortgage. 

82  Foreclosure. 

83  Power  of  attorney  to  execute. 

84  Assignment  of  debt. 

85  Record  of  assignment  of  mortgage. 

86  How  discharged  of  record. 

87  Satisfaction  of  mortgages. 

88  What  real  property  may  be  mortgaged. 

89  Form  of  mortgages  of  real  property. 

90  When  grant  of  real  property  is  recorded  as  mort- 

gage. 

91  Record  of  mortgages  of  real  property. 

92  What  personal  property  may  be  mortgaged. 

93  Form  of  personal  property  mortgages. 

94  Further  requisites  of  personal  property  mortgages. 
95-100  Record  of  personal  property  mortgages. 

101-102  Removal  of  personal  property  mortgaged. 

103  Attachment  of  personal  property  mortgaged. 

104  Mortgage  on  crops. 


Nature  of  Mortgages  in  General. 

SECTION  79.  Mortgage  as  defined  by  the  Civil 
Code,  is  a  contract  by  which  specific  property  is 
hypothecated  for  the  performance  of  an  act  with- 
out the  necessity  of  a  change  of  possession.  It 
conveys  no  title,  but  gives  only  the  security  of 
a  lien  upon  property.  It  may  be  created  upon 
property  held  adversely  to  the  mortgagor.  It 
can  be  created,  renewed  or  extended  only  by 


NOTARY'S  MANUAL.  71 

writing  executed  with  the  formalities  required  in 
the  case  of  a  grant  of  real  property.  The  lien 
of  a  mortgage  is  special,  unless  otherwise 
expressly  agreed,  and  is  independent  of  posses- 
sion, i  It  is  a  lien  on  everything  that  would 
pass  by  a  grant  of  the  property. 2  It  does  not 
bind  the  mortgagor  personally  to  perform  the 
act  for  the  performance  of  which  it  is  security, 
unless  there  is  an  express  covenant  to  that  effect. 
Title  acquired  by  the  mortgagor  subsequent  to 
the  execution  of  the  mortgage  enures  to  the 
mortgagee  as  security  for  the  debt  in  like  man- 
ner as  if  acquired  before  the  execution.  The 
person  whose  interest  in  the  property  is  subject 
to  the  lien  of  a  mortgage  may  not  do  any  act  to 
impair  the  mortgagee's  security.3 

Possession  of  the  Property. 

SECTION  80.  A  mortgage  does  not  entitle  the 
mortgagee  to  the  possession  of  the  property,  un- 
less authorized  by  the  express  terms  of  the  mort- 
gage; but  after  the  execution  of  the  mortgage  the 
mortgagor  may  agree  to  such  change  of  posses- 
sion without  a  new  consideration.  4 


(1)  Civil  Code,  §§2920-2923 

(2)  Civil  Code,  §2026 

(3)  Civil  Code,  f  §2928-2930 

(4)  Civil  Code,  §2927 


72  NOTARY'S  MANUAL. 

The  instrument  is  required  to  be  recorded,  in 
order  to  give  notice  to  subsequent  purchasers  or 
mortgagees,  and  the  recording  of  the  instrument 
is  substituted  in  place  of  the  change  of  posses- 
sion. A  change  of  possession  of  personal  prop- 
erty mortgaged,  would  change  it  into  a  pledge. 

Transfer  When  a  Mortgage. 

SECTION  81.  Every  transfer  of  an  interest  in 
property,  other  than  in  trust,  made  only  as  se- 
curity for  the  performance  of  another  act,  is  to 
be  deemed  a  mortgage,  except  when  in  the  case 
of  personal  property  it  is  accompanied  by  actual 
change  of  possession,  in  which  case  it  is  deemed 
a  pledge.5 

Consequently,  a  deed  absolute  on  its  face,  if 
made  as  security  for  the  payment  of  a  debt,  is  in 
reality  a  mortgage,  and  the  fact  that  a  transfer 
was  made  subject  to  defeasance  on  a  condition 
may,  for  the  purpose  of  showing  such  transfer 
to  be  a  mortgage,  be  proved  (except  as  against 
a  subsequent  purchaser  or  encumbrancer  for 
value  and  without  notice),  though  the  fact  does 
not  appear  by  the  terms  of  the  instrument. „  (See 
When  grant  of  real  property  is  recorded  as 
mortgage.  Sec.  90,  post.) 

(5)  Civil  Code,  $2924 
(8)  Civil  Code,  §2925 


NOTARY'S  MANUAL.  73 


Foreclosure. 


SECTION  82.  A  mortgage  is  usually  given  as 
security  for  a  debt,  and  the  debt  is  evidenced  by 
a  promissory  note,  copy  of  which  is  usually  in- 
serted in  the  mortgage.  If  the  debt  is  not  paid  in 
accordance  with  the  terms  of  the  note,  the  mort- 
gagee may  foreclose  the  mortgage  in  the  manner 
prescribed  by  law.  A  power  of  sale  may  be  con- 
ferred by  the  mortgagor  upon  the  mortgagee  or 
any  other  person,  to  be  exercised  after  a  breach 
of  the  obligation  for  which  the  mortgage  is  se- 
curity.; 

Power  of  Attorney  to  Execute. 

SECTION  83.  A  power  of  attorney  to  execute 
a  mortgage  must  be  in  writing,  subscribed,  ac- 
knowledged or  proved,  certified  and  recorded,  in 
like  manner  as  powers  of  attorney  for  grants  of 
real  property. 8 

Assignment  of  Debt. 

SECTION  84.  The  assignment  of  a  debt  se- 
cured by  a  mortgage,  carries  with  it  the  security.. 


(7)  Civil  Code,  §§2931.  2932 

(8)  Civil  Code,  42933 
(0)  Civil  Code,  $2936 


74  NOTARY'S  MANUAL. 

Record  of  Assignment  of  Mortgage. 

SECTION  85.  An  assignment  of  a  mortgage 
may  be  recorded  in  like  manner  as  a  mortgage, 
and  such  record  operates  as  notice  to  all  per- 
sons subsequently  deriving  title  to  the  mortgage 
from  the  assignor. 

When  the  mortgage  is  executed  as  security  for 
money  due,  or  to  become  due,  on  a  promissory 
note,  bond,  or  other  instrument,  designated  in 
the  mortgage,  the  record  of  the  assignment  of  the 
mortgage  is  not,  of  itself,  notice  to  a  mortgagor, 
his  heirs  or  personal  representatives,  so  as  to  in- 
validate any  payment  made  by  them,  or  either  of 
them,  to  the  person  holding  such  note,  bond,  or 
other  instrument.  10 

How  Discharged  of  Record. 

SECTION  86.  A  recorded  mortgage  may 
be  discharged  by  an  entry  in  the  mar- 
gin of  the  record  thereof,  signed  by  the  mort- 
gagee, or  his  personal  representative  or  assignee, 
acknowledging  the  satisfaction  of  the  mortgage 
in  the  presence  of  the  recorder,  who  must  certify 
the  acknowledgment  in  form  substantially  as 


(10)  Civil  Code,  }§2934,  2835 


NOTARY'S  MANUAL.  75 

follows:  "Signed  and  acknowledged  before  me, 

this day  of ,  in  the  year  -       — . 

A.  B.,  Recorder." 

A  recorded  mortgage,  if  not  discharged  as 
above  provided,  must  be  discharged  upon  the  rec- 
ord by  the  officer  having  custody  thereof,  on  the 
presentation  to  him  of  a  certificate  signed  by  the 
mortgagee,  his  personal  representatives  or  as- 
signs, acknowledged  or  proved  and  certified  as 
prescribed  by  the  chapter  on  recording  transfers, 
stating  that  the  mortgage  has  been  paid,  satisfied, 
or  discharged. 

Foreign  executors  and  administrators  may  sat- 
isfy mortgages  upon  the  records  of  any  county  in 
this  state,  upon  producing  and  recording  in  the 
office  of  the  county  recorder  of  the  county  in  which 
such  mortgage  is  recorded,  a  duly  certified  and 
authenticated  copy  of  their  letters  testamentary 
or  of  administration,  and  which  certificate  shall 
also  recite  that  said  letters  have  not  been  revoked. 

A  certificate  of  the  discharge  of  a  mortgage,  and 
the  proof  or  acknowledgment  thereof,  must  be 
recorded  at  length,  and  a  reference  made  in  the 
record  to  the  book  and  page  where  the  mort- 
gage is  recorded,  and  in  the  minute  of  the  dis- 
charge made  upon  the  record  of  the  mortgage 


76  NOTARY'S  MANUAL. 

to  the  book  and  page  where  the  discharge  is  re- 
corded. u  (See  Satisfaction  of  mortgages,  Sec. 
87,  post.) 

Satisfaction  of  Mortgages. 

SECTION  87.  When  any  mortgage  has  been 
satisfied,  the  mortgagee  or  his  assignee  must  im- 
mediately, on  demand  of  the  mortgagor,  execute, 
acknowledge,  and  deliver  to  him  a  certificate  of 
the  discharge  thereof,  so  as  to  entitle  it  to  be 
recorded,  or  he  must  enter  satisfaction,  or  cause 
satisfaction  of  such  mortgage  to  be  entered  of 
record,  and  any  mortgagee,  or  assignee  of  such 
mortgagee,  who  refuses  to  execute,  acknowledge, 
and  deliver  to  the  mortgagor  the  certificate  of 
discharge,  or  to  enter  satisfaction,  or  cause  satis- 
faction of  the  mortgage  to  be  entered,  as  pro- 
vided in  this  chapter,  is  liable  to  the  mortgagor, 
or  his  grantee  or  heirs,  for  all  damages  which 
he  or  they  may  sustain  by  reason  of  such  refusal, 
and  shall  also  forfeit  to  him  or  them  the  sum  of 
one  hundred  dollars.  12 

What  Real  Property  May  Be  Mortgaged. 

SECTION   88.     Any   interest  in   real   property 


(11)  Civil  Code,  J§293S-2940 

(12)  Civil  Code,  §2941 


NOTARY'S  MANUAL.  77 

which  is  capable  of  being  transferred  may  be 
mort  gaged.  1S 

Form  of  Mortgage  of  Real  Property. 

SECTION  89.  The  code  form  of  mortgage  of 
real  property  is  as  follows: 

"This  mortgage,  made  the  --  day  of  --  , 
in  the  year  --  ,  by  A  B,  of  --  ,  mortgagor, 
to  C  D,  of  --  ,  mortgagee,  witnesseth,  — 

"That  the  mortgagor  mortgages  to  the  mort- 
gagee (here  describe  the  property),  as  security 
for  the  payment  to  him  of  --  dollars,  on  (or 
before)  the  --  day  of  --  ,  in  the  year  --  , 
with  interest  thereon  (or  as  security  for  the  pay- 
ment of  an  obligation,  describing  it,  etc.) 


When  Grant  of  Real  Property  is  Recorded  as  Mortgage. 

SECTION  90.  When  a  grant  of  real  property 
purports  to  be  an  absolute  conveyance,  but  is 
intended  to  be  defeasible  on  the  performance  of 
certain  conditions,  such  grant  is  not  defeated  or 
affected  as  against  any  person  other  than  the 
grantee,  or  his  heirs  or  devisees,  or  persons  hav- 
ing actual  notice,  unless  an  instrument  of  de- 


(13)  Civil  Code,  52847 

(14)  Civil  Code,  J2948 


78  NOTARY'S  MANUAL. 

feasance,  duly  executed  and  acknowledged,  shall 
have  been  recorded  in  the  office  of  the  county 
recorder  of  the  county  where  the  property  is  sit- 
uated.^ 

Record  of  Mortgages  of  Real  Property. 

SECTION  91.  Mortgages  of  real  property 
may  be  acknowledged  or  proved,  certified,  and 
recorded,  in  like  manner  and  with'  like  effect  as 
grants  thereof.  18 

What  Personal  Property  May  Be  Mortgaged. 

SECTION  92.  Mortgages  may  be  made  upon 
all  growing  crops,  including  grapes  and  fruit,  and 
upon  any  and  all  kinds  of  personal  property, 
except  the  following: 

1.  Personal  property  not  capable  of  manual 
delivery; 

2.  Articles  of  wearing  apparel   and  personal 
adornment; 

3.  The  stock  in  trade  of  a  merchant.  17 

Mortgages  upon  personal  property  other  than 
that  permitted  by  law  to  be  mortgaged,  and 
mortgages  not  made  in  conformity  with  law,  are 
nevertheless  valid  between  the  parties,  their 


(15)  Civil  Code,  52950 

(16)  Civil  Code,  $2952 

(17)  Civil  Code,  §2955 


NOTARY'S  MANUAL.  79 

heirs,  legatees  and  personal  representatives,  and 
persons  who,  before  parting  with  value,  have 
actual  notice  thereof.  18. 

Form  of  Personal  Property  Mortgages. 

SECTION  93.  The  form  prescribed  by  the  Code 
is  as  follows: 

"This  mortgage,  made  the  -  —  day  of  -  — , 

in  the  year  -  — ,  by  A  B,  of ,  by  occupation 

a  -  — ,  mortgagor,  to  C  D,  of  -  — ,  by  occupa- 
tion a  -  — ,  mortgagee,  witnesseth, — 

"That  the  mortgagor  mortgages  to  the  mort- 
gagee (here  describe  the  property),  as  security 
for  the  payment  to  him  of  -  -  dollars  on  (or 

before)  the  -  -  day  of  -  — ,  in  the  year , 

with  interest  thereon  (or,  as  security  for  the  pay- 
ment of  a  note  or  obligation,  describing  it,  etc.) 

"A  TV 
A.  r>.   19 

Further  Requisites  of  Personal  Property  Mortgages. 

SECTION  94.  A  mortgage  of  personal  property 
is  void  as  against  creditors  of  the  mortgagor 
and  subsequent  purchasers  and  encumbrancers  of 
the  property  in  good  faith  and  for  value,  un- 
less,— 

1 .  It  is  accompanied  by  the  affidavit  of  all 
the  parties  thereto  that  it  is  made  in  good  faith, 

(18)  Civil  Code,  §2973;   Bank  of  Ukiah  v.  Gibson,  109  Cal.,  199 

(19)  Civil  Code,  52956 


80  NOTARY'S  MANUAL. 

and   without   any   design   to  hinder,  delay,   or 
defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified,  and 
recorded,  in  like  manner  as  grants  of  real  prop- 
erty. 20 

Record  of  Personal  Property  Mortgages. 

SECTION  95.  When  and  where.  A  mortgage 
of  personal  property  must  be  recorded  in  the 
office  of  the  county  recorder  of  the  county  in 
which  the  mortgagor  resides,  if  the  mortgagor  be 
a  resident  of  this  state,  and  it  shall  also  be  re- 
corded in  the  county  in  which  the  property  mort- 
gaged is  situated,  or  to  which  it  may  be  removed. 
Except  as  it  is  otherwise  in  this  article  provided, 
mortgages  of  personal  property  may  be  acknowl- 
edged or  proved,  certified,  and  recorded  in  like 
manner  and  with  like  effect  as  grants  of  real 
property;  but  they  must  be  recorded  in  books 
kept  for  personal  mortgages  exclusively. 

SECTION  96.  Of  ships.  A  mortgage  of  any 
vessel  or  part  of  any  vessel  under  the  flag  of  the 
United  States  is  void  as  against  any  person 
(other  than  the  mortgagor,  his  heirs  and  devi- 
sees, and  persons  having  actual  notice  thereof), 
unless  the  mortgage  is  recorded  in  the  office  of 
the  collector  of  customs  where  such  vessel  is  reg- 
istered or  enrolled. 


(20)  Civil  Code,  J2957 


,  '.KTA  9 A 


NOTARY'S  ""MAT 


NTJAL.  81 


SECTION  97.  Of  Property  in  transit.  For  the 
purposes  of  this  article,  property  in  transit  from 
the  possession  of  the  mortgagee  to  the  county  of 
the  residence  of  the  mortgagor,  or  to  a  location 
for  use,  is,  during  a  reasonable  time  for  such 
transportation,  to  be  taken  as  situated  in  the 
county  in  which  the  mortgagor  resides,  or  where 
it  is  intended  to  be  used. 

SECTION  98.  Of  Property  of  a  common  car- 
rier. For  a  like  purpose,  personal  property  used 
in  conducting  the  business  of  a  common  carrier 
is  to  be  taken  as  situated  in  the  county  in  which 
the  principal  office  or  place  of  business  of  the 
carrier  is  located. 

SECTION  99.  Of  Property  in  different  places. 
A  single  mortgage  of  personal  property,  embrac- 
ing several  things  of  such  character,  or  so  sit- 
uated that  by  the  provisions  of  this  article  sep- 
arate mortgages  upon  them  would  be  required  to 
be  recorded  in  different  places,  is  only  valid  in 
respect  to  the  things  as  to  which  it  is  duly  re- 
corded. 

SECTION  100.  Certified  copies  may  be  re- 
corded. A  certified  copy  of  a  mortgage  of  per- 
sonal property  once  recorded  may  be  recorded  in 
any  other  county,  and  when  so  recorded,  the  rec- 


82  NOTARY'S  MANUAL. 

ord  thereof  has  the  same  force  and  effect   as 
though  it  was  of  the  original  mortgage.  21 

Removal  of  Property  Mortgaged. 

SECTION  101.  Exempt  from  mortgage,  when. 
When  personal  property  mortgaged  is  there- 
after removed  from  the  county  in  which  it  is 
situated,  the  lien  of  the  mortgage  shall  not  be 
affected  thereby  for  thirty  days  after  such 
removal;  but,  after  the  expiration  of  such  thirty 
days,  the  property  mortgaged  is  exempted  from 
the  operation  of  the  mortgage,  except  as  between 
the  parties  thereto,  until  either: 

1.  The  mortgagee  causes  the  mortgage  to  be 
recorded  in  the  county  to  which  the  property  has 
been  removed;  or 

2.  The    mortgagee    takes    possession    of    the 
property,  as  prescribed  in  the  next  section.  22 

Failure  of  the  mortgagee  to  record  the  mortgage 
in  the  county  to  which  the  property  has  been 
removed  within  thirty  days  after  such  removal 
ipso  facto  exempts  the  property  for  all  time  and 
wherever  afterwards  situated  from  the  operation 
of  the  mortgage  in  so  far  as  it  concerns  creditors 
of  the  mortgagor,  unless  the  mortgagee  within 
that  time  takes  possession  of  the  property.  23 

(21)  Civil  Code,  §§2958-2964 

(22)  Civil  Code,  §2965 

(23)  Hopper  v.  Keys,  152  Cal.  488 


NOTARY'S  MANUAL.  83 

But  one  who  purchases  such  mortgaged  property 
in  the  county  to  which  it  is  removed  within  the 
period  of  thirty  days  after  the  removal,  without 
actual  notice  of  the  mortgage,  is  guilty  of  con- 
version, for  which  conversion  the  mortgagee 
acquires  a  cause  of  action  when  it  is  committed 
and  does  not  lose  by  failing  subsequently  to 
record  the  mortgage.  24 

SECTION  102.  May  be  taken  as  a  pledge, 
when.  If  the  mortgagor  voluntarily  removes  or 
permits  the  removal  of  the  mortgaged  property 
from  the  county  in  which  it  was  situated  at  the 
time  it  was  mortgaged,  the  mortgagee  may  take 
possession  and  dispose  of  the  property  as  a  pledge 
for  the  payment  of  the  debt,  though  the  debt 
is  not  due.  25 

Attachment  of  Personal  Property  Mortgaged. 

SECTION  103.  Personal  property  mortgaged 
may  be  taken  under  attachment  or  execution  is- 
sued at  the  suit  of  a  creditor  of  the  mortgagor, 
but  before  the  property  is  so  taken  the  officer 
must  pay  or  tender  to  the  mortgagee  the  amount 
of  the  mortgage  debt  and  interest,  or  must  de- 
posit the  amount  thereof  with  the  county  clerk 
or  treasurer,  payable  to  the  order  of  the  mort- 

(24)  Hammels  v.  Sentous,  151  Cal.  520 

(25)  Civil  Code,  §2966 


84  NOTARY'S  MANUAL. 

gagee.  When  the  property  thus  taken  is  sold 
under  process,  the  officer  must  apply  the  pro- 
ceeds of  the  sale  as  follows: 

1.  To  the  repayment  of  the  sum  paid  to  the 
mortgagee,  with  interest  from  the  date  of  such 
payment;  and 

2.  The  balance,  if  any,  in  like  manner  as  the 
proceeds  of  sales  under  execution  are  applied  in 
other  cases.-2e 

Mortgage  on  Crops. 

SECTION  104.  The  lien  of  a  mortgage  on  a 
growing  crop  continues  on  the  crop  after  sever- 
ance, whether  remaining  in  its  original  state  or 
converted  into  another  product,  so  long  as  the 
same  remains  on  the  land  of  mortgagor.  27 


(26)  Civil  Code,  §§2968   2970 

(27)  Civil  Code,  §2972 


NOTARY'S  MANUAL.  85 

CHAPTER  VI. 

HOMESTEADS. 

J105          Meaning  of. 
106          Head  of  a  family,  who  is. 
107-111  Selection  of. 
112-114  Declaration  of  homestead. 

115  Exempt  from  execution. 

116  Subject  to  execution  when. 

117  How  conveyed  or  encumbered. 

118  Abandonment  of. 

119  Proceedings  on  execution  against  homestead 

120  Of  insane  persons. 

Meaning  of. 

SECTION  105.  Homestead  means  "home 
place."  It  is  something  distinct  from  the  legal 
title,  and  consists  of  the  dwelling  house  in  which 
the  claimant  resides  and  the  land  on  which  the 
same  is  situated,  set  apart  as  provided  by  law, 
for  the  purpose  of  providing  a  home  for  the 
family  and  protecting  it  against  the  improvi- 
dence or  misfortune  of  the  head  or  other  member 
of  the  family,  i  The  homestead  limits  and  qual- 
ifies the  right  of  the  owner  of  the  title  for  the 
benefit  and  protection  of  both  spouses  while 
living,  and  "to  insure  future  protection  to  the 
survivor.  (See,  Effect  of  filing  for  record, 
Sec.  114,  post.) 

(1)  Civil  Code,  J1237 


86  NOTARY'S  MANUAL. 

Head  of  a  Family,  Who  Is. 

SECTION  106.  The  phrase  "head  of  a  fam- 
ily," as  used  in  the  law  of  homesteads,  includes 
within  its  meaning, — 

1.  The    husband,   when   the     claimant   is   a 
married  person; 

2.  Every   person   who    has   residing   on   the 
premises,  with  him  or  her,  and  under  his  or  her 
care  and  maintenance,  either, — 1.     His  or  her 
minor  child,  or  minor  grandchild,  or  the  minor 
child  of  his  or  her  deceased  wife  or  husband; 
2.     A  minor  brother  or  sister,  or  the  minor  child 
of  a  deceased  brother  or  sister; 

3.  A  father,  mother,  grandfather,  or  grand- 
mother; 

4.  The  father,  mother,  grandfather,  or  grand- 
mother of  a  deceased  husband  or  wife; 

5.  An  unmarried  sister,  or  any  other  of  the 
relatives  mentioned  in  this  section,   who   have 
attained  the  age  of  majority,  and  are  unable  to 
take  care  of  or  support  themselves. 2 

Selection  of. 

SECTION  107.  From  what  it  may  be  selected. 
If  the  claimant  be  married,  the  homestead  may 


(2)  Civil  Code.  §1261 


NOTARY'S  MANUAL.  87 

be  selected  from  the  community  property,  or  the 
separate  property  of  the  husband,  or  with  the 
consent  of  the  wife,  from  her  separate  property. 
When  the  claimant  is  not  married,  but  is  the 
head  of  a  family,  within  the  meaning  of  the  above 
section,  the  homestead  may  be  selected  from  any 
of  his  or  her  pro  pert  y.3 

SECTION  108.  From  what  it  may  not  be  se- 
lected. The  homestead  cannot  be  selected  from 
the  separate  property  of  the  wife  without  her  con- 
sent, shown  by  her  making,  or  joining  in  mak- 
ing, the  declaration  of  homestead.4 

SECTION  109.  Limitation  as  to  value.  A 
homestead  may  be  selected  and  claimed, — 

1.  Of  not  exceeding  five  thousand  dollars  in 
value,  by  any  head  of  a  family; 

2.  Of  not  exceeding  one  thousand  dollars  in 
value,  by  any 'other  person.  5 

SECTION  110.  How  made  by  head  of  a  family. 
In  order  to  select  a  homestead,  the  husband  or 
other  head  of  a  family,  or  in  case  the  husband  has 
not  made  such  selection,  the  wife,  must  execute 


(3)  Civil  Code,  §1238 

(4)  Civil  Code.  51239 

(5)  Civil  Code.  §1260 


88  NOTARY'S  MANUAL. 

and  acknowledge,  in  the  same  manner  as  a  grant 
of  real  property  is  acknowledged,  a  declaration  of 
homestead,  and  file  the  same  for  record. e  (See 
Head  of  a  family,  who,  Sec.  106,  supra.) 

SECTION  111.  How  made  by  other  than  head 
of  a  family.  Any  person  other  than  the  head  of  a 
family,  in  the  selection  of  a  homestead,  must  exe- 
cute and  acknowledge,  in  the  same  manner  as  a 
grant  of  real  property  is  acknowledged,  a  decla- 
ration of  homestead.  In  case  the  homestead  is 
selected  by  any  other  than  the  head  of  a  family, 
the  property  must  not  exceed  in  value  the  sum  of 
one  thousand  dollars.7  (See  Limitation  as  to 
value,  Sec.  109,  supra.) 

Declaration  of  Homestead. 

SECTION  112.  Contents  of.  The  declaration 
of  homestead,  if  made  by  the  head  of  a  family, 
must  contain, — 

1.  A  statement,  showing  that  the  person  mak- 
ing it  is  the  head  of  a  family,  and,  if  the  claimant 
is  married,  the  name  of  the  spouse;  or,  when  the 
declaration  is  made  by  the  wife,  showing  that  her 
husband  has  not  made  such  declaration,  and  that 


(6)  Civil  Code,  §1262 

(7)  Civil  Code,  §1266 


NOTARY'S  MANUAL.  89 

she  therefore  makes  the  declaration  for  their  joint 
benefit; 

2.  A  statement  that  the  person  making  it  is 
residing  on  the  premises,  and  claims  them  as  a 
homestead; 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value.. 

If  made  by  a  person  other  than  the  head  of  a 
family  it  must  contain  everything  required  by  sub- 
divisions second,  third  and  fourth  above  stated. 9 

SECTION  113.  Recording  of.  The  declaration 
must  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  land  is  situated.  10 

SECTION  114.  Effect  of  filing  for  record.  From 
and  after  the  time  the  declaration  is  filed  for 
record,  the  premises  therein  described  consti- 
tute a  homestead.  If  the  selection  was  made  by 
a  married  person  from  the  community  property, 
or  from  the  separate  property  of  the  spouse 
making  the  selection  or  joining  therein,  the  land 
so  selected  on  the  death  of  either  of  the  spouses, 
vests  in  the  survivor,  subject  to  no  other  liability 
than  such  as  exists  or  has  been  created  under  the 
law  governing  homesteads;  in  other  cases,  upon 

(8)  Civil  Code,  S1263 

(»)  Civil  Code,  §1267 

(10)  Civil  Code,  {1264 


90  NOTARY'S  MANUAL. 

the  death  of  the  person  whose  property  was  se- 
lected as  a  homestead,  it  shall  go  to  the  heirs  or 
devisees,  subject  to  the  power  of  the  superior 
court  to  assign  the  same  for  a  limited  period  to 
the  family  of  the  decedent;  but  in  no  case  shall 
it  or  the  products,  rents,  issues  or  profits  thereof, 
be  held  liable  for  the  debts  of  the  owner  except  as 
provided  by  law;  and  should  the  homestead  be 
sold  by  the  owner,  the  proceeds  arising  from  such 
sale  to  the  extent  of  the  value  allowed  for  a  home- 
stead exemption  as  provided  in  this  title  shall  be 
exempt  to  the  owner  of  the  homestead  for  a 
period  of  six  months  next  following  such  sale.  n 

Whatever  be  the  character  of  the  title  or  inter- 
est in  the  land  held  at  the  time  of  the  filing  of  the 
declaration,  the  claim  will  attach  to  such  title  or 
interest,  and  whatever  may  inure  to  or  grow  out 
of  that  title  will  be  impressed  with  the  lien, 
equally  with  the  original  title.  12 

Exempt  from  Execution. 

SECTION  115.  The  homestead  is  protected 
against  the  claims  of  creditors  while  it  is  occu- 
pied as  a  home,  and  is  exempt  from  execution  and 
forced  sale  except  as  set  forth  in  the  next  section. 


(11)  Civil  Code,  §1265 

(12)  Alexander  v.  Jackson,  92  Cal.,  519 


NOTARY'S  MANUAL.  91 

Subject  to  Execution  When. 

SECTION  116.  The  homestead  is  subject  to 
execution  or  forced  sale  in  satisfaction  of  judg- 
ments obtained, — 

1.  Before  the  declaration  of  homestead  was 
filed  for  record,  and  which  constitute  liens  upon 
the  premises; 

2.  On  debts  secured  by  mechanics,  contract- 
ors, sub-contractors,  artisans,  architects,  builders, 
laborers  of  every  class,  materialmen's  or  vendors' 
liens  upon  the  premises; 

3.  On   debts   secured  by  mortgages  on   the 
premises,  executed  and  acknowledged  by  the  hus- 
band and  wife,  or  by  an  unmarried  claimant; 

4.  On   debts   secured  by   mortgages   on  the 
premises,  executed  and  recorded  before  the  decla- 
ration of  homestead  was  filed  for  record.  13     (See 
Proceedings  when  value  of  homestead  exceeds 
exemption.     Sec.  119,  post.) 

How  Conveyed  or  Encumbered. 

SECTION  117.  The  homestead  of  a  married 
person  cannot  be  conveyed  or  encumbered,  unless 
the  instrument  by  which  it  is  conveyed  or  encum- 
bered is  executed  and  acknowledged  by  both  hus- 
band and  wife.  14 

(13)  Civil  Code,  §1241 

(14)  Civil  Code,  {1242 


92  NOTARY'S  MANUAL. 

Abandonment  of. 

SECTION  118.  A  homestead  can  be  abandoned 
only  by  a  declaration  of  abandonment,  or  a  grant 
thereof  executed  and  acknowledged, — 

1.  By  the  husband  and  wife,  if  the  claimant  is 
married; 

2.  By  the  claimant,  if  unmarried. 

A  declaration  of  abandonment  is  effectual  only 
from  the  time  it  is  filed  in  the  office  in  which  the 
homestead  was  recorded.  18 

Proceedings  on  Execution  Against  Homestead. 

SECTION  119.  In  all  cases  in  which  the  home- 
stead is  exempt  from  execution  and  forced  sale 
(see  Exempt  from  Execution,  Sec.  115,  and  Sub- 
ject to  Execution,  Sec.  116,  supra),  if  the  value 
of  the  property  exceeds  the  homestead  exemption, 
then  the  property  is  subject  to  execution  for  the 
enforcement  of  a  judgment  to  the  extent  of  such 
excess.  In  such  cases,  upon  proper  application  by 
a  judgment  creditor  to  the  superior  court  for  the 
appointment  of  appraisers,  the  homestead  may  be 
appraised,  and  if  the  appraised  value  exceeds  the 
homestead  exemption  the  appraisers  must  deter- 
mine whether  the  property  can  be  divided;  if  it 
can  be,  then  the  court  must  direct  the  appraisers 

(15)  Civil  Code,  {{1243,  1244 


NOTARY'S  MANUAL.  93 

to  set  off  so  much  including  the  residence  as  will 
amount  in  value  to  the  homestead  exemption;  if 
it  cannot  be  divided,  then  the  property  must  be 
sold,  and  the  proceeds  of  sale  to  the  amount  of 
the  exemption  must  be  paid  to  the  claimant,  and 
the  balance  applied  to  the  satisfaction  of  the 
execution. 

The  application  for  appointment  of  appraisers 
above  referred  to  may  be  made  by  a  judgment 
creditor  at  any  time  within  sixty  days  after  levy 
of  execution,  but  if  not  so  made  within  sixty  days 
the  lien  of  the  execution  shall  cease  at  the  expira- 
tion of  said  period  and  no  execution  based  upon 
the  same  judgment  shall  thereafter  be  levied 
upon  the  homestead. 

Further,  within  ninety  days  from  the  date  of 
filing  the  petition  for  such  appointment,  a  copy 
thereof,  with  notice  of  the  time  and  place  of 
hearing  must  be  served  upon  the  claimant  or  his 
attorneys  at  least  two  days  before  the  hearing,  and 
if  such  notice  shall  not  be  served,  the  lien  of  the 
execution  shall  cease  at  the  expiration  of  said 
period  of  ninety  days,  and  no  execution  based 
upon  the  same  judgment  shall  thereafter  be 
levied  upon  the  homestead.  ie 


(16)  Civil  Code,  {§1245-1259 


94  NOTARY'S  MANUAL. 

Of  Insane  Persons. 

SECTION  120.  In  1905  some  new  sections  were 
added  to  the  code,  providing,  that  in  case  either 
husband  or  wife  is  hopelessly  insane,  the  husband 
or  wife  not  insane  may  apply  to  the  superior 
court  of  the  county  in  which  the  property  is  situ- 
ated for  leave  to  sell  or  mortgage  the  homestead 
to  raise  money  to  satisfy  a  lien  thereon,  or  to 
provide  for  the  support  and  care  of  the  sane  or 
insane  spouse  or  their  minor  children;  and  after 
proceedings  regularly  had,  if  it  appears  to  the 
court  that  such  husband  or  wife  is  hopelessly 
insane  the  court  will  make  an  order  permitting 
the  sale  or  encumbrance  of  such  homestead  by 
the  husband  or  wife  not  insane.  17 


(17)  Civil  Code,  J§1269a-1269c 


NOTARY'S  MANUAL.  95 

CHAPTER  VII. 

AFFIDAVITS. 

5121          Nature  of. 

122  Use  of. 

123  Authority  to  take. 
124-127  Requisites  of. 

Nature  of. 

SECTION  121.  An  affidavit  is  an  oath  reduced 
to  writing,  sworn  to  before  some  officer  author- 
ized to  administer  oaths.  To  make  an  affidavit 
as  to  any  fact  is  to  declare  it  under  oath  in  writing. 
There  is,  therefore,  no  such  thing  as  an  unwritten 
affidavit.  It  is  defined  by  the  code  to  be  "  a  writ- 
ten declaration  under  oath,  made  without  notice 
to  the  adverse  party."t  It  differs  from  a  deposition 
in  that  the  latter  is  evidence  given  by  a  witness 
under  interrogatories,  oral  or  written,  upon  no- 
tice to  the  adverse  party  in  order  that  he  may  be 
represented,  whereas  an  affidavit  is  a  mere  volun- 
tary act  and  may  be  ex  parte.  The  question 
whether  the  personal  presence  of  the  affiant  before 
the  notary  is  necessary  to  the  administration  of 
an  oath,  arose  in  the  case  of  Fairbanks,  Morse  & 
Co.  v.  Getchell,  13  Cal.  App.  458,  in  which  case 
the  oath  to  an  affidavit  for  attachment  was  ad- 
ministered by  communication  had  between  the 

(1)  Code  of  Civil  Procedure,  §2003 


96  NOTARY'S  MANUAL. 

notary  and  the  affiant  over  the  telephone.  It 
was  contended  that  the  act  was  void  and  of  no 
effect  for  that  reason.  That  question  was  not 
decided  by  our  own  appellate  court  for  the  reason 
that  its  decision  was  not  necessary  to  a  deter- 
mination of  that  case;  but  it  was  remarked  that 
the  contention  against  the  validity  of  such  an 
oath  finds  direct  support  in  the  case  of  Sullivan  v. 
First  Nat.  Bank,  37  Tex.  Civ.  App.  228,  (83  S.  W. 
421).  In  this  last  case  the  Texas  Appellate  court 
say:  "Not  only  is  the  personal  presence  of  the 
affiant  required  to  the  end  that  by  appropriate 
form  and  ceremony  his  conscience  may  be  bound, 
but  it  is  required  also  to  the  end  that  the  officer 
may  see  and  know  that  the  man  who  signs  also 
swears." 
Use  of. 

SECTION  122.  By  affidavit,  is  one  of  the  modes 
prescribed  by  law  for  taking  the  testimony  of  wit- 
nesses. Another  mode  is  by  deposition  (see  De- 
positions, Sees.  128-146,  post),  and  the  third 
mode  is  by  oral  examination,  by  which  is  meant  an 
examination  in  the  presence  of  the  jury  or  tribunal 
which  is  to  decide  the  fact  or  act  upon  it,  the  tes- 
timony being  heard  by  the  jury  or  tribunal  from 
the  lips  of  the  witness.  2  The  rule  is  that  the  best 
evidence  must  be  produced  which  the  nature  of 

(2)  Code  of  Civil  Procedure,  §§2002,  2004,  2005. 


NOTARY'S  MANUAL.  97 

the  transaction  will  permit  of,  and,  of  course, 
affidavits  are  not  in  the  nature  of  the  best  evi- 
dence by  which  to  prove  issuable  facts.  The  tes- 
timony of  witnesses  in  open  court,  where  the  ad- 
verse party  may  have  an  opportunity  to  cross- 
examine,  is  the  best  method.  The  use  of  affi- 
davits is  generally  confined  to  matters  of  proced- 
ure, matters  collateral,  ancillary  or  incidental  to 
an  action  or  proceeding.  An  affidavit  may  be  used 
to  verify  a  pleading  or  a  paper  in  a  special  proceed- 
ing, to  prove  the  service  of  a  summons,  notice,  or 
other  paper  in  an  action  or  special  proceeding,  to 
obtain  a  provisional  remedy,  the  examination  of  a 
witness,  or  a  stay  of  proceedings,  or  upon  a  mo- 
tion, and  in  any  other  case  expressly  permitted  by 
some  other  provision  of  the  code,  such  as,  to 
prove  the  publication  of  a  document  or  notice  re- 
quired by  law  to  be  published  in  a  newspaper.  8 

Authority  to  Take. 

SECTION  123.  An  affidavit  to  be  used  before 
any  court,  judge  or  officer  of  this  state,  may  be 
taken  before  any  officer  authorized  to  administer 
oaths. 4  An  attorney,  if  a  notary,  may  admin- 
ister an  oath  to  and  take  the  affidavit  of  his  client. 
It  has  been  held  that  there  is  nothing  in  the  law 


(3)  Code  of  Civil  Procedure,  *}200»,  2010 

(4)  Code  of  Civil  Procedure,  (2012 


98  NOTARY'S  MANUAL. 

to  prohibit  him  from  doing  so.5  It  is  essential  that 
the  oath  be  taken  before  an  officer  having  author- 
ity to  administer  it  in  the  particular  case,  in 
order  to  constitute  the  offense  of  perjury.  How- 
ever false  an  oath  may  be,  one  cannot  be  con- 
victed of  perjury  except  the  officer  who  admini- 
sters the  oath  have  legal  authority  to  administer 
it.8  (See  Jurisdiction,  Sec.  7,  supra.) 

Requisites  of. 

SECTION  124.  In  general.  The  essential  re- 
quirements, apart  from  the  title,  venue  and  jurat, 
are:  (1)  That  an  oath  shall  be  administered  by  an 
officer  authorized  by  law  to  administer  it  (see 
Oaths  and  affirmations,  Sees.  144-146,  post); 
(2)  that  what  the  affiant  states  under  such  oath 
shall  be  in  writing;  and  (3)  that  the  written 
statement  so  sworn  to  shall  be  subscribed  by  the 
party  making  it.  It  should  be  free  from  interlin- 
eations and  erasures,  but  if  there  are  any  it  is  well 
that  they  be  noted  by  the  notary  on  the  margin  of 
the  paper  to  indicate  that  they  were  made  at  the 
time  of  swearing  and  not  inserted  after. 

SECTION  125.  Title.  If  the  affidavit  is  to  be 
used  in  an  action  or  proceeding,  it  should  show 
the  title  of  court  and  cause  in  which  it  is  to  be 
used.  It  is  provided,  however,  that  an  affidavit 

(5)  Reavis  v.  Cowell,  56  Gal..  588 
'6)   People  v.  Cohen,  118  Cal.  74 


NOTARY'S  MANUAL.  99 

without  the  title  of  the  action  or  proceeding  in 
which  it  is  made,  or  with  a  defective  title,  is  as 
valid  and  effectual  for  any  purpose  as  if  duly  en- 
titled, if  it  intelligibly  refer  to  such  action  or  pro- 
ceeding. a 

SECTION  126.  Venue.  The  venue  in  an  affida- 
vit, as  in  a  certificate  of  acknowledgment,  is 
prima  facie  evidence  of  the  place  where  it  is 
taken,  and  the  place  where  it  is  taken, 
should,  of  course,  be  within  the  territorial 
jurisdiction  of  the  officer  administering  the  oath, 
as  will  appear  from  his  official  seal  attached  to  the 
instrument.  Nevertheless  it  has  been  held  that 
the  omission  of  the  venue  is  not  fatal  to  an  affi- 
davit, where  the  oath  was  administered  by  an  offi- 
cer authorized  to  administer  the  same,  and  the 
legal  presumption  that  he  acted  within  his  juris- 
diction is  aided  by  the  title  of  court  and  cause  of 
the  legal  proceedings. 7  (See  Venue  to  certificate 
of  acknowledgment,  Sec.  29,  supra.) 

SECTION  127.  Jurat.  This  is  the  certificate  of 
the  officer,  ordinarily  added  at  the  foot  of  the  affi- 
davit, stating  that  the  same  was  "subscribed  and 
sworn  to  before"  him  on  a  certain  day,  and  fol- 
lowed by  his  signature  and  official  designation. 
The  signature  of  the  officer  should  be  authenti- 
cated by  his  official  seal. 

(6)  Code  of  Civil  Procedure,  §1048 

(7)  ReavU  v.  Cowell.  56  Cal..  588 


100  NOTARY'S  MANUAL. 


CHAPTER  VIII. 

DEPOSITIONS. 

1128          Definition  and  nature  of. 
129          When  may  be  taken  in  this  state. 
130-131  Manner  of  taking. 
132          Certificate  to. 
133-140  Subpoena. 
141-143  Witnesses. 
144-146  Oaths  and  affirmations. 

Definition  and  Nature  of. 

SECTION  128.  As  defined  by  the  code,  a  depo- 
sition is  a  written  declaration  under  oath  made 
upon  notice  to  the  adverse  party  for  the  purpose 
of  enabling  him  to  attend  and  cross-examine.!  In 
all  cases  where  a  written  declaration  under  oath 
is  used,  other  than  where  an  affidavit  is  allowed 
by  law,  it  must  be  by  deposition. 2  As  said  be- 
fore (Sec.  122,  supra),  the  testimony  of  witnesses 
given  in  open  court  on  the  trial  of  an  action, 
where  the  adverse  party  may  have  an  opportunity 
to  cross-examine,  is  the  most  satisfactory  meth- 
od of  proving  facts  in  controversy.  There  are 
certain  cases,  however,  when  the  testimony  of 
witnesses  must  be  taken  by  deposition,  if  taken 

(1)  Code  of  Civil  Procedure,  $2004 

(2)  Cod*  of  Civil  Procedure,  {2010 


.iTA  BARPAR  , 
NOTARY  S   MANUAL.  101 

at  all,  as  when  they  reside  without  the  jurisdiction 
of  the  court  and  cannot  be  compelled  to  attend 
the  trial,  and  also  other  cases  when  the  deposition 
is  permitted  to  be  taken  if  desired,  all  as  set  forth 
in  the  following  section. 

When  May  Be  Taken  in  This  State. 

SECTION  129.  The  testimony  of  a  witness  in 
this  state  may  be  taken  by  deposition  in  an  action 
at  any  time  after  the  service  of  the  summons  or 
the  appearance  of  the  defendant,  and  in  a  special 
proceeding  after  a  question  of  fact  has  arisen 
therein,  in  the  following  cases: 

1.  When  the  witness  is  a  party  to  the  action 
or  proceeding  or  an  officer  or  member  of  a  corpo- 
ration which  is  a  party  to  the  action  or  proceed- 
ing, or  a  person  for  whose  immediate  benefit  the 
action  or  proceeding  is  prosecuted  or  defended; 

2.  When  the  witness  resides  out  of  the  county 
in  which  his  testimony  is  to  be  used,  or  resides  in 
the  county  but  more  than  fifty  miles  distant  from 
the  place  of  trial  or  hearing  by  the  nearest  usual 
traveled  route; 

3.  When  the  witness  is  about  to  leave  the 
county  where  the  action  is  to  be  tried,  and  will 
probably  continue  absent  when  the  testimony  is 
required; 


102  NOTARY'S  MANUAL. 

4.  When  the  witness,  otherwise  liable  to  at- 
tend the  trial,  is  nevertheless  too  infirm  to  attend; 

5.  When  the  testimony  is  required  upon  a  mo- 
tion, or  in  any  other  case  where  the  oral  examina- 
tion of  the  witness  is  not  required; 

6.  When  the  witness  is  the  only  one  who  can 
establish  facts  or  a  fact  material  to  the  issue;  pro- 
vided, that  the  deposition  of  such  witness  shall 
not  be  used  if  his  presence  can  be  procured  at  the 
time  of  the  trial  of  the  cause.  3 

Manner  of  Taking. 

SECTION  130.  In  this  state.  Either  party  to 
an  action  may  take  the  deposition  of  a  witness 
in  either  of  the  cases  shown  in  the  preceding  sec- 
tion, upon  giving  the  notice,  accompanied  by  the 
affidavit,  or  taking  such  other  steps  as  are  re- 
quired by  law.  4  Depositions  must  be  taken  in 
the  form  of  question  and  answer.  The  words 
of  the  witness  must  be  written  down,  in  the  pres- 
ence of  the  witness,  by  the  officer  taking  the  depo- 
sition, or  by  some  disinterested  person  appointed 
by  him.  It  may  be  taken  down  in  shorthand, 
in  which  case  it  must  be  transcribed  into  long- 
hand by  the  person  who  took  it  down.  When 
completed,  it  must  be  carefully  read  to  or  by 
the  witness  and  corrected  by  him  in  any  par- 
es) Code  of  Civil  Procedure,  §2021 
(4)  Code  of  Civil  Procedure.  §2031 


NOTARY'S  MANUAL.  103 

ticular,  if  desired,  by  writing  or  causing  his 
corrections  to  be  written  in  the  body  or  margin 
of  or  at  the  bottom  of  the  deposition,  and  must 
then  be  subscribed  by  the  witness.  The  officer 
before  whom  the  deposition  is  taken  must  write 
his  initials  near  said  corrections.  If  the  parties 
agree  in  writing  to  any  other  mode,  the  mode  so 
agreed  upon  must  be  folio  wed.  5 

Either  party  to  the  action  may  attend  the 
examination,  and  put  such  questions,  direct  and 
cross,  as  may  be  proper.  The  deposition,  when 
completed,  must  be  carefully  read  to  the  witness 
and  corrected  by  him  in  any  particular,  if  de- 
sired, and  must  then  be  subscribed  by  him.e  This 
makes  the  reading,  correcting  and  signing  the 
necessary  and  material  things  to  be  done.  The 
object  of  requiring  the  witness  to  sign  the  depo- 
sition is  to  make  him  responsible  for  its  phrase- 
ology, for  by  signing  he  adopts  the  language  as 
his  own.7  The  deposition  must  then  be  certi- 
fied by  the  officer  taking  it,  enclosed  in  an  en- 
velope or  wrapper,  sealed  and  directed  to  the 
clerk  of  the  court  in  which  the  action  is  pending, 
or  to  such  person  as  the  parties  in  writing  may 
agree  upon,  and  either  delivered  by  the  officer  to 


(5)  Code  of  Civil  Procedure,  52006 

(6)  Code  of  Civil  Procedure,  §2032 

(7)  Kyle  v.  Craig.  125  Cal.,  115,  116 


104  NOTARY'S  MANUAL. 

the  clerk  or  such  person,  or  transmitted  through 
the  mail,  or  by  some  safe  private  opportunity;  and 
thereupon  such  deposition  may  be  used  by  either 
party  upon  the  trial  or  other  proceeding  against 
any  party  giving  or  receiving  the  notice. 8 

SECTION  131.  To  be  used  out  of  the  state.  The 
deposition  of  a  witness  taken  in  this  state  to  be 
used  in  a  matter  or  proceeding  pending  in  the 
court  of  another  state,  must  be  taken  in  accord- 
ance with  the  law  of  the  state  governing  the 
matter  or  proceeding  in  which  the  same  is  to  be 
used,  and  instructions  should  accompany  the  com- 
mission. 

Certificate  to. 

SECTION  132.  The  notary  must  attach  his  cer- 
tificate to  the  deposition,  which  certificate  must  be 
in  proper  form  and  show  all  the  acts  done  by  him 
in  relation  to  the  taking  of  the  deposition. 

[Appendix  Form  No.  12.] 

Subpoena. 

SECTION  133.  Subpoena  defined.  The  pro- 
cess by  which  the  attendance  of  a  witness  is  re- 
quired is  a  subpoena.  It  is  a  writ  or  order  di- 
rected to  a  person  and  requiring  his  attendance 
at  a  particular  time  and  place  to  testify  as  a  wit- 

(8)  Code  of  Civil  Procedure,  §2032 


NOTARY'S  MANUAL.  105 

ness.  It  may  also  require  him  to  bring  with  him 
any  books,  documents,  or  other  things  under  his 
control,  which  he  is  bound  by  law  to  produce  in 
evidence.  9 

SECTION  134.     How  issued.    A  subpoena  is  is- 
sued as  follows : 

1.  To  require  attendance  before  a  court,  or 
at  the  trial  of  an  issue  therein,  or  upon  the  taking 
of  a  deposition  in  an  action  or  proceeding  pending 
therein,  it  is  issued  by  the  clerk  of  the  court  in 
which  the  action  or  proceeding  is  pending,  under 
the  seal  of  the  court,  or  if  there  is  no  clerk  or  seal 
then  by  a  judge  or  justice  of  such  court; 

2.  To  require  attendance  before  a  commis- 
sioner appointed  to  take  testimony  by  a  court  of 
a  foreign  country,  or  of  the  United  States,  or  of 
any  other  state  in  the  United  States,  or  before 
any  officer  or  officers  empowered  by  the  laws  of 
the  United  States  to  take  testimony,  it  may  be 
issued  by  the  clerk  of  the  superior  court  of  the 
county  in  which  the  witness  is  to  be  examined, 
under  the  seal  of  such  court; 

3.  To   require   attendance   out   of   court,   in 
cases  not  provided  for  in  subdivision  one,  before 
a  judge,  justice  or  other  officer  authorized  to 
administer  oaths,  or  take  testimony  in  any  mat- 

(9)  Code  of  Civil  Procedure.  51985 


106  NOTARY'S  MANUAL. 

ter  under  the  laws  of  this  state,  it  is  issued  by 
the  judge,  justice  or  other  officer  before  whom 
the  attendance  is  required. 

If  the  subpoena  is  issued  to  require  attendance 
before  a  court,  or  at  the  trial  of  an  issue  therein, 
it  is  issued  by  the  clerk,  as  of  course,  upon  the 
application  of  the  party  desiring  it.  If  it  is 
issued  to  require  attendance  before  a  commissioner 
or  other  officer  upon  the  taking  of  a  deposition,  it 
must  be  issued  by  the  clerk  of  the  superior  court 
of  the  county  wherein  the  attendance  is  required 
upon  the  order  of  such  court  or  of  a  judge  thereof, 
which  order  may  be  made  ex  parte.10 

From  the  case  of  Scott  v.  Shields,  8  Cal.  App. 
12,  it  appears  that  there  is  some  conflict  in  the 
foregoing  provisions  relating  to  the  issuance  of  a 
subpoena.  That  was  a  case  pending  in  Placer 
County  in  which  it  was  sought  to  take  the  deposi- 
tion of  a  witness  residing  in  Sacramento  County, 
and  under  the  authority  of  the  last  paragraph 
the  superior  court  of  Sacramento  County  made  an 
order  directing  the  clerk  of  his  court  to  issue  the 
subpoena.  It  was  contended  that  the  subpoena 
requiring  the  attendance  of  the  witness,  under 
such  circumstances,  should  have  been  issued  by 
the  notary  before  whom  the  witness  was  to  appear 

(10)  Code  of  Civil  Procedure,  §1986 


NOTARY'S  MANUAL.  107 

under  subdivision  3  of  this  section.  The  appellate 
court  upheld  the  issuance  of  the  subpoena  by  the 
clerk  of  the  superior  court  of  Sacramento  County, 
saying  that  if  the  provisions  conflict,  the  latter 
provision  of  this  section  would  prevail  over  the 
former  under  the  well-settled  rule  of  construction. 
Prior  to  1907  a  notary  public  had  power  to 
issue  a  subpoena  requiring  attendance  before  him 
upon  the  taking  of  a  deposition  in  an  action  or 
proceeding  pending  in  court.  But  while  a  notary 
had  power  to  issue  such  a  subpoena  that  pro- 
cedure was  for  a  long  time  ineffectual  to  bring  a 
witness  before  the  notary  for  the  reason  that  the 
supreme  court  decided  in  the  case  of  Lezinsky  v. 
Superior  Court,  72  Cal.  510,  that  in  case  the 
witness  refused  to  obey  the  subpoena  of  the  no- 
tary public  before  whom  his  deposition  was  to 
have  been  taken,  the  court  in  which  the  action 
was  pending  had  no  power  to  punish  him  for  con- 
tempt— such  refusal  being  contempt  of  the  officer 
issuing  the  subpoena  and  not  contempt  of  court. 
It  therefore  became  customary  to  have  subpoenas 
requiring  the  attendance  of  witnesses  before  no- 
taries issued  by  the  clerk  of  the  court  in  which 
the  action  was  pending,  under  the  seal  of  the 
court,  in  order  that  disobedience  of  the  subpoena 
might  be  reported  back  to  the  court  and  punished 
as  contempt  by  the  court.  Later,  the  decision 


108  NOTARY'S  MANUAL. 

in  the  case  of  Lezinsky  v.  Superior  Court  was 
overruled  by  the  case  of  Burns  v.  Superior  Court, 
140  Cal.  1,  on  the  ground  that  the  conduct  of  the 
witness  in  refusing  to  attend  at  the  time  and 
place  fixed  for  the  taking  of  the  deposition  was 
an  interference  with  the  proceedings  of  the  court, 
and  could  therefore  be  punished  as  contempt  of 
court.  However,  by  the  act  of  the  legislature 
of  1907  amending  section  1986  of  the  Code  of 
Civil  Procedure,  the  procedure  is  now  settled,  and 
a  subpoena  requiring  attendance  before  a  notary 
public  upon  the  taking  of  a  deposition  must  be 
issued  by  the  clerk  of  the  superior  court  of  the 
county  wherein  the  attendance  is  required,  upon 
the  order  of  such  court  or  of  a  judge  thereof. 
Under  subdivision  3  of  that  section  (see  subdi- 
vision 3  of  this  section)  a  notary  may  still  issue 
a  subpoena  in  certain  cases.  Punishment  for 
disobedience  to  such  a  subpoena  is  also  provided 
for.  (See  Disobedience  to  subpoena,  how  pun- 
ished, Sec.  137,  post.} 

SECTION  135.  How  served.  The  service  of  a 
subpoena  is  made  by  showing  the  original  and  de- 
livering a  copy,  or  a  ticket  containing  its  sub- 
stance, to  the  witness  personally,  giving  or  offer- 
ing to  him  at  the  same  time,  if  demanded  by  him, 
the  fees  to  which  he  is  entitled  for  travel  to  and 
from  the  place  designated,  and  one  day's  attend- 


NOTARY'S  MANUAL  109 

ance  there.  The  service  must  be  made  so  as  to 
allow  the  witness  a  reasonable  time  for  prepara- 
tion and  travel  to  the  place  of  attendance.  Such 
service  may  be  made  by  any  person.  If  a  witness 
is  concealed  in  a  building  or  vessel,  so  as  to  pre- 
vent the  service  of  a  subpoena  upon  him,  any 
court  or  judge,  or  any  officer  issuing  a  sub- 
poena, may,  upon  proof  by  affidavit  of  the  con- 
cealment, and  of  the  materiality  of  the  witness, 
make  an  order  that  the  sheriff  of  the  county  serve 
the  subpoena;  and  the  sheriff  must  serve  it  ac- 
cordingly, and  for  that  purpose  may  break  into 
the  building  or  vessel  where  the  witness  is  con- 
cealed. n 

SECTION  136.  When  witness  not  compelled  to 
obey.  A  witness  is  not  obliged  to  attend  as  a 
witness  before  any  court,  judge,  justice,  or  any 
other  officer,  out  of  the  county  in  which  he  resides, 
unless  the  distance  be  less  than  fifty  miles  from 
his  place  of  residence  to  the  place  of  trial.  ia 

SECTION  137.  Disobedience  to  subpoena,  how 
punished.  Disobedience  to  a  subpoena,  or  a  re- 
fusal to  be  sworn,  or  to  answer  as  a  witness,  or  to 
subscribe  an  affidavit  or  deposition  when  required, 
may  be  punished  as  a  contempt  by  the  court 
issuing  the  subpoena.  When  the  subpoena,  in 

(11)  Code  of  Civil  Procedure,  §51887,  1088 

(12)  Code  of  Civil  Procedure,  {1888 


110  NOTARY'S  MANUAL. 

any  such  case,  requires  the  attendance  of  the 
witness  before  an  officer  or  commissioner  out  of 
court,  it  is  the  duty  of  such  officer  or  commissioner 
to  report  any  such  disobedience  or  refusal  to  the 
court  issuing  the  subpoena;  and  the  witness  must 
not  be  punished  for  any  refusal  to  answer  a  ques- 
tion or  to  subscribe  an  affidavit  or  deposition, 
unless,  after  a  hearing  upon  notice,  the  court 
orders  him  to  so  answer  or  subscribe,  and  then 
only  for  disobedience  to  such  order.  Any  judge, 
justice,  or  other  officer  mentioned  in  subdivision 
three  of  section  1986  (see  subdivision  3  of  section 
134,  supra),  may  report  any  such  disobedience  or 
refusal  to  the  superior  court  of  the  county  in 
which  such  attendance  was  required,  and  such 
court  thereupon  has  power,  upon  notice,  to  order 
the  witness  to  perform  the  omitted  act,  and  any 
refusal  or  neglect  to  comply  with  such  order  may 
be  punished  as  a  contempt  of  such  court.  13 

SECTION  138.  Punishment  in  case  of  disobe- 
dience. In  addition  to  punishment  for  contempt, 
a  witness  disobeying  a  subpoena  forfeits  to  the 
party  aggrieved  the  sum  of  one  hundred  dollars, 
and  all  damages  which  he  may  sustain  by  the 
failure  of  the  witness  to  attend,  which  forfeiture 
and  damages  may  be  recovered  in  a  civil  action.  14 

(13)  Code  of  Civil  Procedure,  §1991 

(14)  Code  of  Civil  Procedure,  §1992 


NOTARY'S  MANUAL.  Ill 

SECTION  139.  Attendance,  how  enforced.  In 
case  of  failure  of  a  witness  to  attend,  the  court  or 
officer  issuing  the  subpoena,  upon  proof  of  the 
service  thereof,  and  of  the  failure  of  the  wit- 
ness, may  issue  a  warrant  to  the  sheriff  of  the 
county  to  arrest  the  witness  and  bring  him  be- 
fore the  court  or  officer  where  his  attendance 
was  required.  Every  such  warrant  of  commit- 
ment, issued  by  a  court  or  officer,  must  specify 
therein,  particularly,  the  cause  of  the  commit- 
ment, and  if  it  be  for  refusing  to  answer  a  ques- 
tion, such  question  must  be  stated  in  the  war- 
rant. And  every  warrant  to  arrest  or  commit  a 
witness,  pursuant  hereto,  must  be  directed  to  the 
sheriff  of  the  county  where  the  witness  may  be, 
and  must  be  executed  by  him  in  the  same  manner 
as  process  issued  by  the  superior  court.  16 

SECTION  140.  //  witness  is  a  prisoner,  how 
may  be  brought.  If  the  witness  be  a  prisoner, 
confined  in  a  jail  or  prison  within  this  state,  an 
order  for  his  examination  in  the  prison  upon 
deposition,  or  for  his  temporary  removal  and  pro- 
duction before  a  court  or  officer,  for  the  purpose 
of  being  orally  examined,  may  be  made  as  fol- 
lows: 

1.     By  the  court  itself  in  which  the  action  or 


(15)  Code  of  Civil  Procedure,  J§1993.  1994 


112  NOTARY'S  MANUAL. 

special  proceeding  is  pending,  unless  it  be  a  jus- 
tice's court. 

2.  By  a  justice  of  the  supreme  court,  or  a 
judge  of  the  superior  court  of  the  county  where 
the  action  or  proceeding  is  pending,  if  pending 
before  a  justice's  court,  or  before  a  judge  or  other 
person  out  of  court. 

Such  order  can  only  be  made  on  the  motion  of 
a  party,  upon  affidavit  showing  the  nature  of  the 
action  or  proceeding,  the  testimony  expected  from 
the  witness,  and  its  materiality. 

If  the  witness  be  imprisoned  in  the  county 
where  the  action  or  proceeding  is  pending,  his 
production  may  be  required.  In  all  other  cases 
his  examination,  when  allowed,  must  be  taken 
upon  deposition.  18 

Witnesses. 

SECTION  141.  Duty  to  attend,  and  answer 
questions.  A  witness  served  with  a  subpoena  must 
attend  at  the  time  appointed,  with  any  papers 
under  his  control  lawfully  required  by  the  sub- 
poena, and  answer  all  pertinent  and  legal  ques- 
tions; and,  unless  sooner  discharged,  must  re- 
main until  the  testimony  is  closed. 

He  must  answer  questions  legal  and  pertinent 

(16)  Code  of  Civil  Procedure.  §§1995-1997 


NOTARY'SJMANUAL.  113 

to  the  matter  in  issUe,  though  his  answer  may  es- 
tablish a  claim  against  himself;  but  he  need  not 
give  an  answer  which  will  have  a  tendency  to 
subject  him  to  punishment  for  a  felony;  nor  need 
he  give  an  answer  which  will  have  a  direct  ten- 
dency to  degrade  his  character,  unless  it  be  to  the 
very  fact  in  issue,  or  to  a  fact  from  which  the 
fact  in  issue  would  be  presumed.  But  a  witness 
must  answer  as  to  the  fact  of  his  previous  convic- 
tion for  felony.  17 

SECTION  142.  Right  of,  to  protection  from  in- 
sult. It  is  the  right  of  a  witness  to  be  protected 
from  irrelevant,  improper,  or  insulting  questions, 
and  from  harsh  or  insulting  demeanor;  to  be  de- 
tained only  so  long  as  the  interests  of  justice  re- 
quire it;  to  be  examined  only  as  to  matters  legal 
and  pertinent  to  the  issue.  lg 

SECTION  143.  Right  of,  to  protection  from 
arrest.  Every  person  who  has  been,  in  good 
faith,  served  with  a  subposna  to  attend  as  a  wit- 
ness before  a  court,  judge,  commissioner,  ref- 
eree, or  other  person,  in  a  case  where  the  dis- 
obedience of  the  witness  may  be  punished  as  a 
contempt,  is  exonerated  from  arrest  in  a  civil  ac- 
tion while  going  to  the  place  of  attendance,  neces- 
sarily remaining  there  and  returning  therefrom. 

(17)  Code  of  Civil  Procedure.  5 $2064,^2065 

(18)  Code  of  Civil  Procedure,  $2066 


114  NOTARY'S  MANUAL. 

The  arrest  of  a  witness,  contrary  to  the  fore- 
going, is  void,  and  when  willfully  made,  is  a 
contempt  of  the  court;  and  the  person  making 
it  is  responsible  to  the  witness  arrested  for 
double  the  amount  of  the  damages  which  may  be 
assessed  against  him,  and  is  also  liable  to  an  ac- 
tion, at  the  suit  of  the  party  serving  the  witness 
with  a  subprena,  for  the  damages  sustained  by 
him  in  consequence  of  the  arrest.  The  court  or 
officer  before  whom  the  attendance  is  required, 
may  discharge  the  witness  from  such  an  arrest, 
and  if  the  court  has  adjourned  before  the  arrest, 
or  before  application  for  the  discharge,  a  judge 
of  the  court  may  grant  the  discharge. 

It  is  also  provided  that  an  officer  is  not  liable 
to  the  party  for  making  the  arrest  in  ignorance  of 
the  facts  creating  the  exoneration,  but  is  liable 
for  any  subsequent  detention  of  the  party,  if 
such  party  claim  the  exemption  and  make  an  af- 
fidavit stating,  (1)  that  he  has  been  served  with 
a  subposna  to  attend  as  a  witness  before  a  court, 
officer,  or  other  person,  specifying  the  same,  the 
place  of  attendance,  and  the  action  or  proceed- 
ing in  which  the  subposna  was  issued;  and  (2) 
that  he  has  not  thus  been  served  by  his  own  pro- 
curement, with  the  intention  of  avoiding  an  ar- 
rest ;  (3)  that  he  is  at  the  time  going  to  the  place 
of  attendance,  or  returning  therefrom,  or  remain- 


NOTARY'S  MANUAL.  115 

ing  there  in  obedience  to  the  subpoena.  The  af- 
fidavit may  be  taken  by  the  officer,  and  exonerates 
him  from  liability  for  discharging  the  witness 
when  arrested.  1B 

Oaths  and  Affirmations. 

SECTION  144.  Nature  of  an  oath.  An  oath  has 
been  denned  to  be  the  act  of  "calling  on  God  to 
witness  that  what  is  said  by  the  person  swear- 
ing is  true,  and  invoking  the  divine  vengeance  on 
his  head  if  what  he  says  is  false."20 

SECTION  145.  Authority  of  notary  to  admin- 
ister. Every  court,  every  judge  or  clerk  of  any 
court,  every  justice  and  every  notary  public,  and 
every  officer  or  person  authorized  to  take  testi- 
mony in  any  action  or  proceeding,  or  to  decide 
upon  evidence,  has  power  to  administer  oaths  or 
affirmations.  21 

SECTION  146.  Form  of.  An  oath,  or  affirma- 
tion, in  an  action  or  proceeding,  may  be  admin- 
istered as  follows,  the  person  who  swears,  or  af- 
firms, expressing  his  assent  when  addressed  in 
the  following  form:  "You  do  solemnly  swear 
(or  affirm,  as  the  case  may  be)  that  the  evidence 
you  shall  give  in  this  issue  (or  matter)  pending 
between and ,  shall  be  the  truth,  the 

(19)  Code  of  Civil  Procedure.  552067-2070 

(20)  10  Ohio,  121 

(21)  Code  of  Civil  Procedure,  {2093 


116  NOTARY'S  MANUAL. 

whole  truth,  and  nothing  but  the  truth,  so  help 
you  God." 22  In  People  v.  Collins,  6  Cal.  App. 
492,  the  form  of  the  oath  set  forth  in  the  indict- 
ment was  not  precisely  the  same  as  that  given 
in  the  statute,  and  this  was  criticised  by  the 
appellant.  The  court  said:  "But  the  oath  set 
forth  is  in  substance  the  same  as  that  specified 
in  the  statute,  and  besides  'It  is  no  defense  to  a 
prosecution  for  perjury  that  an  oath  was  admini- 
stered or  taken  in  an  irregular  manner'." 

Any  person  who  desires  it,  may  at  his  option, 
instead  of  taking  an  oath,  make  his  solemn  af- 
firmation or  declaration.  This  is  done  by  using 
the  word  "affirm"  or  "declare"  instead  of 
"swear"  in  the  oath.  The  form  of  oath  may  be 
varied  to  suit  the  belief  of  the  witness,  and  when- 
ever the  court  before  which  a  person  is  offered  as 
a  witness  is  satisfied  that  the  witness  has  a  pecu- 
liar mode  of  swearing  connected  with  or  in  addi- 
tion to  the  usual  form  of  administration,  which,  in 
his  opinion,  is  more  solemn  or  obligatory,  the 
court  may,  in  its  discretion,  adopt  that  mode. 
Therefore,  when  a  person  is  sworn  who  believes 
in  any  other  than  the  Christian  religion,  he  may 
be  sworn  according  to  the  peculiar  ceremonies  of 
his  religion,  if  there  be  any  such.23 

(22)  Code  of  Civil  Procedure,  §2094 

(23)  Code  of  Civil  Procedure,  §§2095-2097 


NOTARY'S  MANUAL.  117 

CHAPTER  IX. 

BILLS    AND   NOTES. 


$147  Duty  of  Notary  in  respect  to. 

148-151  Bills  of  exchange. 

152-155  Promissory  notes. 

156-157  Checks. 

158  Bank-Notes. 

159  Certificates  of  Deposit. 

160  Relation  of  Parties  to  Bills  and  Notes. 
161-162  Negotiability. 

163-169  Instruments,  when  negotiable. 

170-179  Endorsement. 

180-184  Presentment  for  acceptance. 

185-190  Acceptance. 

191  Non-acceptance. 

192-196  Acceptance  or  payment  for  honor. 

197-203  Presentment  for  payment  of  negotiable  instru- 
ments in  general. 

204-208  Presentment  of  bills  of  exchange  for  payment. 

209-210  Extinction  of  negotiable  instruments. 

211  Dishonor  of  negotiable  instruments. 

212-222  Notice  of  dishonor. 

223-235  Protest. 


Duty  of  Notary  in  Respect  to. 

SECTION  147.  Another  of  the  duties  of  no- 
taries public  is,  "When  requested,  to  demand  ac- 
ceptance and  payment  of  foreign,  domestic  and 
inland  bills  or  promissory  notes,  and  protest  the 
same  for  non-acceptance  and  non-payment.  *  *  " 


118  NOTARY'S  MANUAL. 

(See  Duties,  Sec.  5,  sub.  1,  supra.)  Protest 
must  be  made  by  a  notary  public  if  one  can  be 
obtained.  But  before  passing  to  the  subject  of 
protest  in  particular,  the  rules  of  law  governing 
negotiable  instruments  in  general  should  be  care- 
fully considered  in  order  that  the  nature  of  the 
contract  between  the  parties  to  these  instruments, 
their  respective  rights  and  obligations,  and  all 
measures  necessary  to  protect  those  rights  and 
enforce  such  obligations  in  case  of  dishonor,  may 
be  fully  understood. 

Bills  of  Exchange. 

SECTION  148.  Definition  and  nature  of.  A 
bill  of  exchange  is  an  instrument,  negotiable  in 
form,  by  which  one,  who  is  called  the  drawer,  re- 
quests another,  called  the  drawee,  to  pay  a  speci- 
fied sum  of  money.  A  bill  of  exchange  may  be 
drawn  in  any  number  of  parts,  each  part  stat- 
ing the  existence  of  the  others,  and  all  forming 
one  set.  An  agreement  to  draw  a  bill  .of  exchange 
binds  the  drawer  to  execute  it  in  three  parts,  if 
the  other  party  to  the  agreement  desires  it.  Pre- 
sentment, acceptance,  or  payment  of  a  single  part 
in  a  set  of  a  bill  of  exchange  is  sufficient  for  the 
whole,  t 


(1)  Civil  Code,  JJ3171-3175 


NOTARY'S  MANUAL.  119 

SECTION  149.  Where  payable.  A  bill  of  ex- 
change is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made 
payable. 

2.  If  it  specifies  no  place  of  payment,  then  at 
the  place  to  which  it  is  addressed. 

3.  If  it  is  not  addressed  to  any  place,  then  at 
the  place  of  residence  or  business  of  the  drawee, 
or  wherever  he  may  be  found.     If  the  drawee  has 
no  place  of  business,  or  if  his  place  of  business 
or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excused, 
and  the  bill  may  be  protested  for  non-payment.  2 

SECTION  150.  Parties  to.  The  parties  to  a 
bill  of  exchange  are:  (1)  The  drawer;  (2)  the 
drawee,  and  (3)  the  payee.  If  the  drawee  is 
willing  to  pay  the  bill  at  maturity  and  "accepts" 
the  same  upon  presentation  to  him  for  that  pur- 
pose, he  then  becomes  the  acceptor.  If  the  payee 
transfers  the  bill  and  all  his  rights  under  it  by 
writing  his  name  across  the  back  and  delivering  it 
to  another,  he  becomes  an  endorser,  and  the  per- 
son to  whom  it  is  transferred  becomes  the  payee. 
Such  payee  may  again  transfer  the  instrument 
by  endorsement,  and  so  on,  again  and  again.  A 

(2)  Civil  Code.  53176 


120  NOTARY'S  MANUAL. 

bill  of  exchange  may  .give  the  name  of  any  per- 
son, in  addition  to  the  drawee  to  be  resorted  to 
in  case  of  need,  and  in  that  case  the  bill  of  ex- 
change must  be  presented  to  such  drawee  in  case 
of  need  for  acceptance  or  payment,  as  the  case 
may  be,  before  it  can  be  treated  as  dishonored. 3 

SECTION  151.  Foreign  and  inland  bills.  An 
inland  bill  is  one  drawn  and  payable  in  this  state. 
All  others  are  foreign.  4  The  states  of  the  Union 
are  considered  foreign  to  each  other  for  the  pur- 
poses of  negotiable  paper.  The  law  does  not  re- 
quire protest  in  case  of  the  dishonor  of  an  inland 
bill  or  promissory  note,  but  foreign  bills  must  be 
protested. 5  (See  Protest,  when  necessary,  Sec. 
224,  post.)  Inland  bills,  and  promissory  notes  are 
not  required  to  be  protested,  but  may  be  under 
the  law,  and  this  precaution  is  usually  taken  for 
the  purposes  of  evidence. 

Promissory  Notes. 

SECTION  152.  Definition  and  nature  of.  A 
promissory  note  is  an  instrument  negotiable  in 
form,  whereby  the  signer  promises  to  pay  a  speci- 
fied sum  of  money.. 


(3)  Civil  Code,  §§3172,  3188 

(4)  Civil  Code,  §3224 

(5)  Civil  Code,  §3225 
(C)  Civil  Code,  §3244 


NOTARY'S  MANUAL.  121 

SECTION  153.  When  bill  of  exchange  is  deemed 
a  promissory  note.  An  instrument  in  the  form 
of  a  bill  of  exchange,  but  drawn  upon  and  ac- 
cepted by  the  drawer  himself,  is  to  be  deemed  a 
promissory  note.  A  bill  of  exchange,  if  accepted, 
with  the  consent  of  the  owner,  by  a  person  other 
than  the  drawee,  or  an  acceptor  for  honor,  be- 
comes in  effect  the  promissory  note  of  such  per- 
son, and  all  prior  parties  thereto  are  exonerated. 7 

SECTION  154.  Parties  to.  The  parties  to  a 
promissory  note  are:  (1)  the  maker,  and  (2)  the 
payee.  The  payee  of  a  promissory  note  may 
transfer  the  same  by  endorsement  and  delivery  to 
a  third  person,  and  thus  become  an  endorser  the 
same  as  the  payee  of  a  bill  of  exchange. 

SECTION  155.  Joint  or  joint  and  several.  If 
the  note  is  signed  by  more  than  one  person,  the 
makers  may  be  jointly  or  jointly  and  severally 
liable,  depending  upon  the  form  of  the  note.  A 
note  reading  "We  promise  to  pay"  would  be 
presumed  to  be  joint;  one  reading  "We,  jointly 
and  severally,  promise  to  pay' '  is,  of  course,  joint 
and  several ;  and  a  promise  made  in  the  first  per- 
son singular  number  would  be  presumed  to  be 
joint  and  several,  as  each  signer  promises  to  be 
responsible  for  the  full  amount. ,  All  the  makers 

(7)  Civil  Code,  113245.  3240 

(8)  Civil  Code,  J}1659,  1660 


122  NOTARY'S  MANUAL. 

must  be  joined  as  defendants  in  an  action  on  a 
joint  promissory  note,  whereas  a  joint  and  several 
obligation  may  be  sued  on  as  if  made  by  any  one 
of  the  signers  alone. 

Checks. 

SECTION  156.  Defined.  A  check  is  a  bill  of 
exchange  drawn  upon  a  bank  or  banker,  or  a 
person  described  as  such  upon  the  face  thereof, 
and  payable  on  demand,  without  interest. fl 

SECTION  157.  Subject  to  what  rules.  A  check 
is  subject  to  all  the  rules  of  law  hereinafter  set 
forth  concerning  bills  of  exchange,  with  the  fol- 
lowing exceptions: 

1.  The  drawer  and  endorsers  are  exonerated 
by  delay  in  presentment,  only  to  the  extent  of 
the  injury  which  they  suffer  thereby. 

2.  An  endorsee,  after  its  apparent  maturity, 
but  without  actual  notice  of  its  dishonor,  ac- 
quires a  title  equal  to  that  of  an  endorsee  before 
such  period.  10 

Bank-Notes. 

SECTION  158.  Bank  notes  are  in  the  nature  of 
promissory  notes  issued  by  a  bank,  payable  to 
bearer.  A  bank  note  remains  negotiable,  even 
after  it  has  been  paid  by  the  maker.  n 

(9)  Civil  Code,  §3254 

(10)  Civil  Code.  §3255 

(11)  Civil  Code.  §3261 


NOTARY'S  MANUAL.  123 

Certificates  of  deposit. 

SECTION  159.  Certificates  of  deposit  are  ne- 
gotiable instruments  belonging  to  a  class  of  their 
own,  and  in  the  business  world,  as  well  as  in 
legislation  and  the  decisions  of  the  courts,  cer- 
tificates of  deposit  are  understood  to  represent 
money  left  with  a  bank  or  banker  and  which  is 
to  be  retained  until  the  depositor  demands  it, 
the  certificate  being  in  the  nature  of  a  receipt 
executed  by  the  bank  therefor.  No  time  of  pay- 
ment being  specified,  it  is  payable  immediately.  12 

Relation  of  the  Parties  to  Bills  and  Notes. 

SECTION  160.  The  rights  and  obligations  of 
the  drawer  of  a  bill  of  exchange  are  the  same  as 
those  of  the  first  endorser  of  any  other  negotia- 
ble instrument.  13  It  is  also  true  that  the  maker 
of  a  note  is  in  the  same  position  as  the  acceptor 
of  a  bill.  In  the  case  of  a  promissory  note  there 
is  a  promise  by  one  person  to  pay  to  another,  or 
order,  a  specified  sum  of  money.  As  said  before, 
this  instrument  may  be  transferred  by  endorse- 
ment, and  the  endorsee  or  holder  of  the  note,  upon 
seeking  to  collect  it,  looks  first  to  the  maker  of  the 
note,  and  then  to  the  endorser.  In  the  case  of  a 
bill  of  exchange,  there  is  no  promise.  One  person 

(12)  Murphy  v.  Pacific  Bank,  130  Cal..  548 

(13)  CivifCode,  $3 177 


124  NOTARY'S  MANUAL. 

requests  another  to  pay  to  a  third  person  a  speci- 
fied sum  of  money.  Such  an  instrument  must 
be  presented  for  acceptance,  and  if  the  drawee  is 
willing  to  do  as  directed  and  accepts  the  bill,  he 
then  promises  to  pay  in  the  same  manner  as  the 
maker  of  a  note.  But  if  he  refuses  to  accept,  or, 
if  he  accepts  and  on  presentation  for  payment, 
refuses  to  pay,  the  holder  has  a  right  to  look  to 
the  drawer  for  payment.  The  holder  then,  of  a 
bill  of  exchange,  looks  first  to  the  drawee  or  ac- 
ceptor, and  then  to  the  drawer  and  endorsers,  in 
their  order,  if  there  are  endorsers.  The  nature  of 
the  contract  between  the  endorser  and  endorsee 
of  a  promissory  note  is,  that  the  former  will  pay 
the  note  if  the  maker  does  not,  and  the  nature  of 
the  contract  between  the  drawer  and  payee  of 
a  bill  is,  that  the  former  is  responsible  for  the 
bill  in  case  the  drawee  refuses  to  accept  or  pay 
the  same.  (See  Negotiability,  effect  of,  Sec.  161, 
post.) 

Negotiability. 

SECTION  161.  Effect  of.  In  Shakespear  v. 
Smith,  77  Cal.,  642,  the  term  "negotiable  instru- 
ments" is  defined  to  mean  "such  instruments  as 
carry  with  them  the  legal  title  by  endorsement 
and  delivery,  as  well  as  when  transferred  before 
maturity  the  right  to  recover  their  full  face  value 


NOTARY'SJUANUAL.  126 

without  reference  to  defenses  affecting  their  va- 
lidity." And  the  following  explanation  of  nego- 
tiable instruments  is  made  in  Adams  v.  Seaman, 
82  Cal.,  636:  "When  one  man  promises  to  pay 
money  to  another  in  the  future,  if  he  puts  that 
promise  in  the  form  of  a  negotiable  paper,  he 
gives  to  the  promise  characteristics  which  do  not 
belong  at  all  to  ordinary  indebtedness.  If  A 
merely  promises — either  orally  or  by  common 
writing — to  pay  B  one  thousand  dollars  at  the 
expiration  of  ten  months  (which  would  be  a 
non-negotiable  instrument),  and  during  that 
time  B  becomes  indebted  to  A  on  other  transac- 
tions in  the  sum  of  five  hundred  dollars,  the  lat- 
ter sum  can  be  set  off  against  the  former;  and  it 
can  be  so  set  off  against  an  assignee  of  B  if  it 
accrued  before  notice  of  assignment.  But  if  the 
promise  be  made  in  the  shape  of  a  negotiable 
promissory  note,  then,  if  B  endorse  the  note  be- 
fore the  expiration  of  the  ten  months  to  a  third 
party,  the  latter  can  compel  A  to  pay  him  the 
whole  amount  of  the  note,  no  matter  how  many 
set-offs  he  may  have  against  B.  In  order,  how- 
ever, for  this  to  be  so,  the  note  must  clearly  com- 
ply with  the  requisites  of  negotiable  paper,  and 
one  of  the  main  requisites — in  addition  to  nego- 
tiable words,  such  as  payable  to  'order'  or 
'bearer' — is  absolute  certainty  as  to  the  amount 


126  NOTARY'S  MANUAL. 

of  money  to  be  paid,  a  certainty  which  must  ap- 
pear upon  the  face  of  the  instrument."  It  is  to 
be  noticed  that  this  peculiar  characteristic  of  ne- 
gotiable paper  does  not  attach  to  the  instrument 
until  it  has  passed  into  the  hands  of  a  third  party. 
As  between  the  immediate  parties  to  a  note — the 
maker  and  the  payee — the  maker  may  present 
any  defenses  he  may  have.  But  when  the  paper 
is  transferred  by  endorsement  to  a  third  party,  it 
passes  free  from  any  equities  between  the  orig- 
inal parties  to  the  instrument  unless  the  time 
and  manner  of  transfer  lays  the  instrument  open 
to  them,  as  stated  in  the  next  section. 

SECTION  162.  Transfer  after  maturity.  The 
purchaser  of  a  note  after  maturity  is  not  an  "en- 
dorsee in  due  course"  and  does  not  acquire  a 
title  free  from  defects  in  the  title  of  the  person 
from  whom  he  acquired  it.  (See  Endorsee  in  due 
course  denned,  Sec.  176,  post.)  If  a  negotiable 
instrument  is  transferred  after  it  is  overdue,  the 
transferee  takes  it  subject  to  any  equities  or  de- 
fenses existing  between  the  original  parties  to 
it.14  The  endorser  of  an  overdue  negotiable  note 
has  as  much  right  to  demand  and  notice  as  the 
endorser  of  a  note  before  maturity,  the  only  dif- 
ference being  as  to  the  time  when  the  demand 

(14)  Chase  v.  Whitmore.  68  Cal.,  545 


NOTARY'S  MANUAL.  127 

and  notice  must  be  given.  Held  in  Beer  v.  Clif- 
ton, 98  Cal.,  326,  that  in  such  case  demand  and 
notice  must  be  within  a  reasonable  time,  at  least 
within  the  time  specified  for  demand  and  notice 
in  case  of  a  note  payable  on  demand. 

A  non-negotiable  written  contract  for  the  pay- 
ment of  money  or  personal  property  may  be 
transferred  by  endorsement  in  like  manner  with 
negotiable  instruments.  Such  endorsement  shall 
transfer  all  the  rights  of  the  assignor  under  the 
instrument  to  the  assignee  subject  to  all  equities 
and  defenses  existing  in  favor  of  the  maker  at 
the  time  of  the  endorsement. 

All  the  provisions  of  our  statutes,  hereinafter 
set  forth,  in  regard  to  presentment,  notice  and 
protest,  have  no  application  to  the  case  of  a  non- 
negotiable  instrument;  they  apply  only  to  nego- 
tiable instruments. 

Instrument,  When  Negotiable. 

SECTION  163.  Must  be  payable  to  order  en- 
bearer.  The  words  "or  order"  or  "to  bearer," 
whether  in  a  promissory  note  or  bill  of  exchange, 
are  words  of  negotiability.  A  negotiable  instru- 
ment is  a  written  promise  or  request  for  the  pay- 
ment of  a  certain  sum  of  money  to  order  or 
bearer,  and  an  instrument,  otherwise  negotiable 


128  NOTARY'S  MANUAL. 

in  form,  payable  to  a  person  named,  "or  to  his 
order,"  or  "to  bearer,"  is  in  the  former  case  pay- 
able to  the  written  order  of  such  person,  and  in 
the  latter  case  payable  to  the  bearer.  15  But  these 
words,  while  necessary  to  a  negotiable  instru- 
ment, do  not  of  themselves  make  an  instrument 
negotiable  unless  certain  other  provisions  of  the 
law  hereinafter  set  forth  are  also  complied  with. 

SECTION  164.  Must  be  unconditional  except 
that  it  may  provide  for  attorney's  fees.  A  nego- 
tiable instrument  must  be  made  payable  in  money 
only  and  without  any  condition  not  certain  of 
fulfillment,  except  that  it  may  provide  for  the 
payment  of  attorney's  fees  and  costs  of  suit,  in 
case  suit  be  brought  thereon  to  compel  the  pay- 
ment thereof.  16  The  exception  in  favor  of  a 
stipulation  for  attorney's  fees,  to  the  rule  above 
stated  that  a  negotiable  instrument  must  be  ab- 
solutely unconditional,  was  added  to  this  section 
of  the  Civil  Code  by  the  legislature  of  1905. 
There  are  many  cases  reported  in  which  our  su- 
preme court  has  held  that  an  instrument  other- 
wise negotiable  in  form,  and  which  in  the  hands  of 
an  endorsee  before  maturity  would  not  have  been 
subject  to  any  of  the  equities  of  the  maker  against 
the  original  payee  if  it  did  not  contain  the  clause 


(15)  Civil  Code,  }§3087,  3101 

(16)  Civil  Code,  §3088 


NOTARY'S  MANUAL.  129 

providing  for  attorney's  fees  in  case  of  suit,  has 
been  rendered  non-negotiable  by  such  a  stipula- 
tion. But  the  action  of  the  legislature  in  amend- 
ing the  section  above  referred  to  has  changed  the 
rule,  and  a  negotiable  instrument  may  contain 
the  clause  providing  for  the  payment  of  attorney's 
fees  and  costs  in  case  of  suit.  (See,  What 
negotiable  instruments  may  contain,  Sec.  167, 
post.) 

SECTION  165.  Payee  must  be  designated.  It 
is  also  essential  that  the  person  to  whose  order  a 
negotiable  instrument  is  made  payable  must  be 
ascertainable  at  the  time  the  instrument  is  made.17 
The  payee,  therefore,  should  be  distinctly  named, 
unless  it  is  payable  to  bearer.  We  have  another 
section  which  reads:  "A  negotiable  instrument, 
made  payable  to  the  order  of  a  person  obviously 
fictitious,  is  payable  to  the  bearer."  18  And  under 
section  3102  of  the  Civil  Code  a  negotiable  in- 
strument, made  payable  to  the  order  of  the  maker, 
or  of  a  fictitious  person,  if  issued  by  the  maker 
for  a  valid  consideration,  without  endorsement, 
has  the  same  effect  against  him  and  all  other 
persons  having  notice  of  the  facts  as  if  payable 
to  the  bearer.  The  purpose  of  this  last  provision 


(17)  Civil  Code,  J3089 

(18)  Civil  Code,  §3103 


130     .  NOTARY'S  MANUAL. 

is  "that  the  party  who  makes  an  instrument,  ne- 
gotiable in  form,  payable  to  his  own  order,  if  he 
receives  a  valid  consideration  therefor,  shall  be 
estopped  from  asserting,  as  against  one  who 
brings  an  action  upon  the  instrument,  that  he 
has  not  endorsed  it";  and  the  rule  applies  as  well 
where  the  instrument  is  payable  to  the  maker  and 
a  third  person  (in  case  it  has  been  endorsed  by 
such  third  person),  as  where  it  is  made  payable 
to  the  maker  alone.  19 

SECTION  166.  Date,  time  and  place  of  pay- 
ment. A  negotiable  instrument  may  be  with  or 
without  date,  and  with  or  without  designation  of 
the  time  or  place  of  payment. 20  Any  date  may 
be  inserted  by  the  maker  of  a  negotiable  instru- 
ment, whether  past,  present,  or  future,  and  the 
instrument  is  not  invalidated  by  his  death  or  in- 
capacity at  the  time  of  the  nominal  date.21  A  ne- 
gotiable instrument  which  does  not  specify  the 
time  of  payment  is  payable  immediately.  A  ne- 
gotiable instrument  which  does  not  specify  a 
place  of  payment  is  payable  at  the  residence  or 
place  of  business  of  the  maker,  or  wherever  he 
may  be  found.  22 


(19)  Main  v.  Hilton,  54  Gal.,  110 

(20)  Civil  Code,  53091 

(21)  Civil  Code,  §3094 

(22)  Civil  Code,  §§3099,  3100 


. 


NOTARY'S  MANUAL.  131 

SECTION  167.  What  negotiable  instruments 
may  contain.  A  negotiable  instrument  may  give 
to  the  payee  an  option  between  the  payment  of 
the  sum  specified  therein  and  the  performance  of 
another  act.  It  may  contain  a  pledge  of  col- 
lateral security,  with  authority  to  dispose  there- 
of. It  must  not  contain  any  other  contract  than 
such  as  is  expressly  permitted  by  law.2S 

It  appears  to  be  settled  by  the  decisions  of  our 
Supreme  Court  that  where  a  note  is  secured  by  a 
mortgage  on  land,  both  being  executed  at  the  same 
time,  the  note,  though  negotiable  in  form,  is  not 
negotiable  in  law,  where  the  purchaser  takes  it 
with  knowledge  of  the  mortgage;  at  any  rate  the 
clause  generally  inserted  in  a  note  secured  by 
mortgage,  viz.:  "should  the  interest  not  be  paid 
when  due,  then  the  whole  sum  of  principal  and  in- 
terest shall  become  immediately  due  and  payable 
at  the  option  of  the  holder,"  whether  inserted  in 
the  note  itself  or  in  the  mortgage  securing  it, 
renders  the  note  non-negotiable.24 

SECTION  168.  Classes  of  negotiable  instru- 
ments. There  are  six  classes  of  negotiable  instru- 
ments, namely: 


(23)  Civil  Code,  §§3090,  3092-3 

(24)  National  Hardware  Co.  v.  Sherwood,  165  Cal.,  1;  Smiley  v.  Wat- 
eon,  23  Cal.  App.  409 


132  NOTARY'S  MANUAL. 

1.  Bills  of  exchange. 

2.  Promissory  notes. 

3.  Bank  notes. 

4.  Checks. 

5.  Bonds. 

6.  Certificates  of  deposit.  28 

SECTION  169.  Presumption  as  to  considera- 
tion. The  signature  of  every  drawer,  acceptor, 
and  endorser  of  a  negotiable  instrument  is  pre- 
sumed to  have  been  made  for  a  valuable  consid- 
eration, before  the  maturity  of  the  instrument, 
and  in  the  ordinary  course  of  business,  and  want 
of  consideration  would  not  exonerate  him  from 
liability  to  an  endorsee  in  good  faith.  2e 

Endorsement. 

SECTION  170.  Definitions.  One  who  writes 
his  name  upon  a  negotiable  instrument,  other- 
wise than  as  a  maker  or  acceptor,  and  delivers 
it  with  his  name  thereon,  to  another  person,  is 
called  an  endorser,  and  his  act  is  called  endorse- 
ment.,. 


(25)  Civil  Code,  §3095 

(20)  Civil  Code,  {§3104,  3122 

(27)  Civil  Code.  §3108 


NOTARY'S  MANUAL.  133 

SECTION  171.  How  made.  The  ordinary 
mode  of  endorsing  a  note  is  by  the  endorser  writ- 
ing his  name  upon  the  back  thereof,  but  it  is  pro- 
vided that  when  there  is  not  room  for  a  signa- 
ture upon  the  back  of  a  negotiable  instrument,  a 
signature  equivalent  to  an  endorsement  thereof 
may  be  made  upon  a  paper  annexed  thereto.  It 
has  been  held  also  that  an  endorsement  may  be 
made  upon  the  face  of  a  note  with  the  same  ef- 
fect as  if  made  on  the  back.  One  who  agrees  to 
endorse  a  negotiable  instrument  is  bound  to  write 
his  signature  upon  the  back  of  the  instrument,  if 
there  is  sufficient  space  thereon  for  that  purpose. 28 

SECTION  172.  Kinds  of.  An  endorsement  may 
be  general  or  special.  A  general  endorsement  is 
one  by  which  no  endorsee  is  named.  A  special 
endorsement  specifies  the  endorsee.  A  negotiable 
instrument  bearing  a  general  endorsement  cannot 
be  afterwards  specially  endorsed;  but  any  lawful 
holder  may  turn  a  general  endorsement  into  a 
special  one,  by  writing  above  it  a  direction  for 
payment  to  a  particular  person.  A  special  en- 
dorsement may,  by  express  words  for  that  pur- 
pose, but  not  otherwise,  be  so  made  as  to  render 
the  instrument  non-negotiable.  29 


(28)  Civil  Code,  SS3109.  3110 

(29)  Civil  Code.  IJ3111.3115 


134  NOTARY'S  MANUAL. 

SECTION  173.  Warranty  of  endorser.  Every 
endorser  of  a  negotiable  instrument,  unless  his 
endorsement  is  qualified,  warrants  to  every  subse- 
quent holder  thereof,  who  is  not  liable  thereon  to 
him: 

1.  That  it  is  in  all  respects  what  it  purports 
to  be. 

2.  That  he  has  a  good  title  to  it. 

3.  That  the  signatures  of  all  prior  parties  are 
binding  upon  them. 

4.  That  if  the  instrument  is  dishonored,  the 
endorser  will,  upon  notice  thereof  duly  given  to 
him,  or  without  notice  where  it  is  excused  by 
law,  pay  the  same  with  interest,  unless  exon- 
erated by  law  because  of  delay  in  presentment 
for  either  acceptance  or  payment. so     (See  Rights 
of  endorsee  in  due  course,  Sec.  177,  post,  Rights 
of  endorser,  Sec.  178,  post.) 

SECTION  174.  Before  delivery  to  payee.  One 
who  endorses  a  negotiable  instrument  before  it  is 
delivered  to  the  payee  is  liable  to  the  payee  there- 
on, as  an  endorser.  Such  a  party  to  a  note,  who 
endorses  it  in  blank  before  delivery  to  the  payee, 
for  the  purpose  of  giving  it  credit,  is  an  endorser, 
and  has  all  the  rights  of  an  endorser.  31 


(30)  Civil  Code,  §3116 

(31)  Civil  Code,  §3117;  Fessenden  v.  Summers,  62  Gal..  484 


NOTARY'S  MANUAL.  135 

A  surety,  who  is  an  apparent  maker,  is  not  an 
endorser  but  a  guarantor,  and  a  guarantor  is 
liable  to  the  guarantee  immediately  upon  default 
of  the  principal  without  demand  or  notice.  A 
guaranty  is  a  promise  to  answer  for  the  debt  of 
another  person.  A  person  might  be  an  endorser 
under  this  section,  and  also  a  guarantor  on  the 
same  instrument.  82 

SECTION  175.  Without  recourse.  An  endorser 
may  qualify  his  endorsement  with  the  words, 
"without  recourse,"  or  equivalent  words;  and 
upon  such  endorsement,  he  is  responsible  only  to 
the  same  extent  as  in  the  case  of  a  transfer  with- 
out endorsement.  Except  as  otherwise  stated  in 
this  paragraph,  an  endorsement  without  recourse 
has  the  same  effect  as  any  other  endorsement. ss 

SECTION  176.  Endorsee  in  due  course  defined. 
An  endorsee  in  due  course  is  one  who,  in  good 
faith,  in  the  ordinary  course  of  business,  and  for 
value,  before  its  apparent  maturity  or  presump- 
tive dishonor,  and  without  knowledge  of  its  act- 
ual dishonor,  acquires  a  negotiable  instrument 
duly  endorsed  to  him,  or  endorsed  generally,  or 
payable  to  the  bearer.  34 


(32)  Chafoin  v.  Rich.  77  Cal.,  476;  Southern  Cal.  Bank  v.  Wyatt, 

87  Cal.,  616;  Loustalot  v.  Calkins,  120  Cal.,  688 

(33)  Civil  Code,  §§3118,  3119 

(34)  Civil  Code,  §3128 


136  NOTARY'S  MANUAL. 

SECTION  177.  Rights  of  endorsee  in  due  course. 
An  endorsee  of  a  negotiable  instrument,  in 
due  course,  acquires  an  absolute  title  thereto, 
so  that  it  is  valid  in  his  hands,  notwithstanding 
any  provision  of  law  making  it  generally  void  or 
voidable,  and  notwithstanding  any  defect  in  the 
title  of  the  person  from  whom  he  acquired  it.35 
He  has  the  same  rights  against  every  prior 
party  thereto  that  he  would  have  had  if  the  con- 
tract had  been  made  directly  between  them  in 
the  first  instance.  The  want  of  consideration  for 
the  undertaking  of  a  maker,  acceptor,  or  endorser 
of  a  negotiable  instrument  does  not  exonerate  him 
from  liability  thereon  to  an  endorsee  in  good 
faith  for  a  consideration^,  (See  Presumption  as 
to  consideration,  Sec.  169,  supra.) 

SECTION  178.  Rights  of  endorser.  The  en- 
dorser of  a  note  cannot  be  held  liable  unless  the 
holder  has  used  due  diligence  to  collect  of  the 
maker  of  the  note  (or  in  case  there  is  more  than 
one  endorser,  of  the  maker  and  the  previous  en- 
dorsers of  the  note),  and  this  diligence  consists 
of  presentment  at  the  proper  time  and  place,  and 
in  case  of  refusal,  notice  at  the  time  and  in  the 
manner  required  by  law.  The  demand  and  no- 


(35)  Civil  Code,  J3124 

(36)  Civil  Code,  i§3120,  3122 


NOTARY'S  MANUAL.  137 

tice  are  conditions  precedent  which  must  be  per- 
formed before  the  endorser  can  be  held  liable. 
He  is  only  liable  in  case  of  dishonor  at  maturity 
by  the  maker.  By  his  contract  he  does  not  un- 
dertake absolutely  to  pay  the  amount  of  money 
named.  His  promise  is  conditional,  and  the  con- 
ditions are  as  clearly  a  part  of  the  instrument  as 
if  written  over  his  signature.  He  promises  to 
pay  provided  the  holder,  at  the  maturity  of  the 
instrument  presents  it  to  the  maker  for  payment 
and  payment  is  refused,  and  he  is  immediately  no- 
tified of  the  fact  that  it  is  thus  dishonored.  (See 
Warranty  of  endorser,  Sec.  173,  supra.)  He  has 
contracted  to  know  and  has  a  right  to  know  that 
the  paper  has  been  presented  to  the  party  pri- 
marily liable  for  payment,  and  been  refused,  and 
a  right  to  demand  that  the  information  shall  be 
so  definitely  given  as  to  enable  him  to  fix  the  lia- 
bility (Notice  of  dishonor,  Sees.  212-222,  post), 
and  upon  taking  up  the  note,  to  coerce  payment 
from  those  back  of  him,  which  can  only  be  done 
when  he  is  advised  that  the  demand  was  made 
at  a  time  when  the  maker  was  bound  to  pay  and 
when  a  failure  to  do  so  would  dishonor  the 
paper.  The  endorser  is  entitled  to  this  notice 
because  his  contract  provides  for  it,  and  it  is  ma- 
terial to  his  interests.  If  the  instrument  is  a  bill 


138  NOTARY'S  MANUAL. 

of  exchange  the  drawer  is  in  the  same  position  as 
is  the  first  endorser  of  a  note  (see  Relation  of  the 
parties  to  bills  and  notes,  Sec.  160,  supra),  and 
is  liable  only  when  due  diligence  has  been  used 
to  collect  of  the  acceptor,  and  proper  steps  have 
been  taken  to  charge  him.  If  there  are  three 
endorsers  on  the  bill,  the  last  one  only  prom- 
ises to  pay  if  the  acceptor,  the  drawer  and  the 
two  previous  endorsers  do  not.  Endorsers  guar- 
antee the  payment  to  all  subsequent  endorsees, 
and  are  liable  in  the  order  in  which  their  endorse- 
ments were  made. 

SECTION  179.  When  instrument  is  left  blank. 
One  who  makes  himself  a  party  to  an  instru- 
ment intended  to  be  negotiable,  but  which  is  left 
wholly  or  partly  in  blank,  for  the  purpose  of  fill- 
ing afterward,  is  liable  upon  the  instrument  to 
an  endorsee  thereof  in  due  course,  in  whatever 
manner  and  at  whatever  time  it  may  be  filled,  so 
long  as  it  remains  negotiable  in  form.S7 

Presentment  for  Acceptance. 

SECTION  180.  The  sections  following  relating 
to  presentment  for  acceptance  (Sees.  181-184), 
acceptance  (Sees.  185-191),  acceptance  or  pay- 


(37)  Civil  Code,  §3125 


NOTARY'S  MANUAL.  139 

ment  for  honor  (Sees.  192-196),  and  presentment 
of  bills  of  exchange  for  payment  (Sees.  204-208), 
apply  only  to  bills  of  exchange. 

SECTION  181.  When  presentment  for  accept- 
ance may  be  made.  At  any  time  before  a  bill  of 
exchange  is  payable  the  holder  may  present  it 
to  the  drawee  for  acceptance,  and  if  acceptance 
is  refused,  the  bill  is  dishonored. 88  A  prudent 
holder  will  present  it  without  delay. 

SECTION  182.  When  must  be  made.  When 
a  bill  of  exchange  is  payable  at  a  specified  time 
after  sight,  the  drawer  and  endorsers  are  exon- 
erated if  it  is  not  presented  for  acceptance  with- 
in ten  days  after  the  time  which  would  suffice, 
with  ordinary  diligence,  to  forward  it  for  accept- 
ance, unless  presentment  is  excused.  39 

SECTION  183.  How  must  be  made.  Present- 
ment for  acceptance  must  be  made  in  the  fol- 
lowing manner,  as  nearly  as  by  reasonable  dili- 
gence it  is  practicable: 

1.  The  bill  must  be  presented  by  the  holder  or 
his  agent. 

2.  It  must  be  presented  on  a  business  day,  and 
within  reasonable  hours. 


(38)  Civil  Code,  83185 
(30)  Civil  Code,  $3189 


140  NOTARY'S  MANUAL. 

3.  It  must  be  presented  to  the  drawee,  or  if  he 
be  absent  from  his  place  of  residence  or  busi- 
ness, to  some  person  having  charge  thereof,  or 
employed  therein;  and 

4.  The   drawee,  on   such  presentment,  may 
postpone  his  acceptance  or  refusal  until  the  next 
day.     If  the  drawee  have  no  place  of  business,  or 
if  his  place  of  business  or  residence  cannot  with 
reasonable  diligence  be  ascertained,  presentment 
for  acceptance  is  excused,  and  the  bill  may  be 
protested  for  non-acceptance. 

Presentment  for  acceptance  to  one  of  several 
joint  drawees,  and  refusal  by  him,  dispenses  with 
presentment  to  the  others. 

A  bill  of  exchange  which  specifies  a  drawee 
in  case  of  need  must  be  presented  to  him  for  ac- 
ceptance or  payment,  as  the  case  may  be,  before 
it  can  be  treated  as  dishonored.  40 

SECTION  184.  When  excused.  As  said  in  the 
foregoing  section  (sub.  4),  if  the  drawee  have  no 
place  of  business,  or  if  his  place  of  business  or 
residence  cannot  with  due  diligence  be  ascer- 
tained, presentment  for  acceptance  is  excused.  It 
is  further  provided  that  presentment  of  a  bill  of 
exchange  for  acceptance  is  also  excused  if  the 


(40)  Civil  Code.  §§3186-3188 


NOTARY'S  MANUAL.  141 

drawee  has  not  capacity  to  accept  it.  And  also, 
that  delay  in  the  presentment  of  a  bill  of  ex- 
change for  acceptance  is  excused,  when  caused 
by  circumstances  over  which  the  holder  has  no 
control.  Presentment  of  a  bill  of  exchange  for 
acceptance  and  notice  of  its  dishonor,  are  ex- 
cused as  to  the  drawer,  if  he  forbids  the  drawee 
to  accept  the  bill,  or  if,  at  the  time  of  drawing,  he 
had  no  reason  to  believe  that  the  drawee  would 
pay  the  same.41 

Acceptance. 

SECTION  185.  How  made  generally.  An  ac- 
ceptance of  a  bill  must  be  made  in  writing,  by 
the  drawee,  or  by  an  acceptor  for  honor,  and 
may  be  made  by  the  acceptor  writing  his  name 
across  the  face  of  the  bill,  with  or  without  other 
words.  The  holder  of  a  bill  of  exchange,  if  en- 
titled to  an  acceptance  thereof,  may  treat  the  bill 
as  dishonored  if  the  drawee  refuses  to  write 
across  its  face  an  unqualified  acceptance.  42 

SECTION  186.  What  holder  may  treat  as  suf- 
ficient. The  holder  of  a  bill  of  exchange  may, 
without  prejudice  to  his  rights  against  prior  par- 
ties, receive  and  treat  as  a  sufficient  acceptance — 


(41)  Civil  Code,  $53218-3220 

(42)  Civil  Code.  ${3193,3194 


142  NOTARY'S  MANUAL. 

1.  An  acceptance  written  upon  any  part  of  the 
bill,  or  upon  a  separate  paper. 

2.  An  acceptance  qualified  so  far  only  as  to 
make  the  bill  payable  at  a  particular  place  with- 
in the  city  or  town  in  which,  if  the  acceptance 
was  unqualified,  it  would  be  payable;  or 

3.  A  refusal  by  the  drawee  to  return  the  bill 
to  the  holder  after  presentment,  in  which  case 
the  bill  is  payable  immediately,  without  regard 
to  its  terms.  4S 

SECTION  187.  By  separate  instrument.  The 
acceptance  of  a  bill  of  exchange,  by  a  separate  in- 
strument, binds  the  acceptor  to  one  who,  upon 
the  faith  thereof,  has  the  bill  for  value  or  other 
good  consideration.  44 

SECTION  188.  Promise  to  accept  when  suf- 
ficient. An  unconditional  promise,  in  writing,  to 
accept  a  bill  of  exchange  is  a  sufficient  acceptance 
thereof,  in  favor  of  every  person  who  upon  the 
faith  thereof  has  taken  the  bill  for  value.  45 

SECTION  189.  Cancellation  of.  The  acceptor 
of  a  bill  of  exchange  may  cancel  his  acceptance  at 
any  time  before  delivering  the  bill  to  the  holder, 
and  before  the  holder  has,  with  the  consent  of  the 


(43)  Civil  Code.  53195 

(44)  Civil  Code,  §3196 

(45)  Civil  Code,  }3197 


NOTARY'S  MANUAL.  143 

acceptor,  transferred  his  title  to  another  person 
who  has  given  value  for  it  upon  the  faith  of  such 
acceptance.  4e 

SECTION  190.  What  is  admitted  by  accept- 
ance. The  acceptance  of  a  bill  of  exchange  ad- 
mits the  signature  of  a  drawer,  but  does  not  ad- 
mit the  signature  of  any  endorser  to  be  gen- 
uine. 47 

Non-Acceptance. 

SECTION  191.  Should  the  drawee  refuse  to 
accept  the  bill  on  presentment  for  acceptance,  it 
should  be  protested  for  non-acceptance,  and  no- 
tice of  protest  given  to  the  drawer  and  endorsers 
in  order  to  charge  them.  In  the  case  of  a  foreign 
bill  this  is  a  necessary  step  and  must  be  taken 
promptly  upon  refusal.  (See  Protest,  Sees. 
223-235,  post.) 

A  bill  of  exchange,  payable  at  a  certain  time 
after  sight,  which  is  not  accepted  within  ten  days 
after  its  date,  in  addition  to  the  time  which  would 
suffice,  with  ordinary  diligence,  to  forward  it  for 
acceptance,  is  presumed  to  have  been  dishon- 
ored. 4g 


(46)  Civil  Code,  53198 

(47)  Civil  Code,  §3199 

(48)  Civil  Code.  §3133 


144  NOTARY'S  MANUAL. 

Acceptance  or  Payment  for  Honor. 

SECTION  192.  When  may  be  made.  On  the 
dishonor  of  a  bill  of  exchange  by  the  drawee, 
and,  in  case  of  a  foreign  bill,  after  it  has  been 
duly  protested,  it  may  be  accepted  or  paid  by  any 
person,  for  the  honor  of  any  party  thereto. 49 

SECTION  193.  Holder  not  required  to  allow 
acceptance  for  honor.  The  holder  of  a  bill  of 
exchange  is  not  bound  to  allow  it  to  be  accepted 
for  honor,  but  is  bound  to  accept  payment  for 
honor.  60 

SECTION  194.  Acceptance  for  honor,  how  made. 
An  acceptor  or  payor  for  honor  must  write  a 
memorandum  upon  the  bill,  stating  therein  for 
whose  honor  he  accepts  or  pays,  and  must  give 
notice  to  such  parties,  with  reasonable  diligence, 
of  the  fact  of  such  acceptance  or  payment. 
Having  done  so,  he  is  entitled  to  reimbursement 
from  such  parties,  and  from  all  parties  prior  to 
them.61 

SECTION  195.  Acceptor  for  honor  must  be 
treated  as  endorser.  A  bill  of  exchange  which 
has  been  accepted  for  honor  must  be  presented  at 


(49)  Civil  Code,  13203 

(50)  Civil  Code,  53204 

(51)  Civil  Code,  J3205 


NOTARY'S  MANUAL.  145 

its  maturity  to  the  drawee  for  payment,  and  no- 
tice of  its  dishonor  by  him  must  be  given  to  the 
acceptor  for  honor,  in  like  manner  as  to  an  en- 
dorser, after  which  the  acceptor  for  honor  must 
pay  the  bill.B2 

SECTION  196.  Notice  of  dishonor  not  excused 
by  acceptance  for  honor.  The  acceptance  of  a  bill 
of  exchange  for  honor  does  not  excuse  the  holder 
from  giving  notice  of  its  dishonor  by  the  drawee. 53 

Presentment  for  Payment  of  Negotiable  Instruments  in 
Qeneral. 

SECTION  197.  Demand  not  necessary  to 
charge  principal  debtor.  It  is  not  necessary  to 
make  a  demand  of  payment  upon  the  principal 
debtor  in  a  negotiable  instrument  (that  is,  the 
maker  of  a  note,  or  the  acceptor  of  a  bill)  in  order 
to  charge  him;  but  if  the  instrument  is  by  its 
terms  payable  at  a  specified  place,  and  he  is  able 
and  willing  to  pay  it  there  at  maturity,  such 
ability  and  willingness  are  equivalent  to  an  offer 
of  payment  upon  his  part.64  The  holder  of  nego- 
tiable paper  may  hold  it  as  long  as  he  pleases  and 


(62)  Civil  Code.  J3206 

(63)  Civil  Code,  43207 
(54)  Civil  Code,  $3130 


146  NOTARY'S  MANUAL. 

not  lose  his  claim  against  the  maker  of  a  note  or 
the  acceptor  of  a  bill,  provided  he  does  not  allow 
it  to  be  barred  by  the  statute  of  limitations,  which 
runs  against  it  four  years  from  the  date  of  its 
maturity;  but  demand  must  be  made  upon  the 
maker  or  acceptor  upon  the  very  day  on  which 
the  note  or  bill  falls  due  in  order  to  charge  the 
endorsers  or  drawer.  (See  Presentment,  how, 
when  and  where  made,  Sec.  190,  sub.  5,  post.) 
The  reason  is,  that  the  contract  of  the  maker  of  a 
note  and  the  acceptor  of  a  bill  is  absolute  to  pay 
at  maturity,  while  the  contract  of  the  endorser 
and  drawer  is  conditioned  upon  presentment  at 
maturity  to  the  principal  debtor,  its  dishonor  by 
him,  and  due  notice  of  such  dishonor.  (See  War- 
ranty of  endorser,  Sec.  173,  sub.  4,  supra,  and 
Rights  of  endorser,  Sec.  178,  supra.) 

SECTION  198.  How,  when  and  where  made. 
Presentment  of  a  negotiable  instrument  for  pay- 
ment, when  necessary,  must  be  made  as  follows, 
as  nearly  as  by  reasonable  diligence  it  is  practic- 
able: 

1.  The  instrument  must  be  presented  by  the 
holder,  or  his  agent; 

2.  The  instrument  must  be  presented  to  the 
principal  debtor,  if  he  can  be  found,  at  the  place 
where  presentment  should  be  made;  and  if  not, 


NOTARY'S  MANUAL.  147 

then  it  must  be  presented  to  some  other  person 
having  charge  thereof,  or  employed  therein,  if 
one  can  be  found  there; 

3.  An  instrument  which  specifies  a  place  for 
its  payment  must  be  presented  there;  and  if  the 
place  specified  includes  more  than  one  house,  then 
at  the  place  of  residence,  or  business,  of  the  prin- 
cipal debtor,  if  it  can  be  found  therein; 

4.  An  instrument  which  does  not  specify  a 
place  for  its  payment  must  be  presented  at  the 
place  of  residence,  or  business,  of  the  principal 
debtor,  or  wherever  he  may  be  found,  at  the  op- 
tion of  the  presenter ; 

5.  The  instrument  must  be  presented  upon  the 
day  of  its  maturity,  or,  if  it  is  payable  on  demand, 
it  may  be  presented  upon  any  day.     It  must  be 
presented  within  reasonable  hours;  and  if  it  is 
payable  at  a  banking  house,  within  the  usual 
banking  hours  of  the  vicinity,  but,  by  the  consent 
of  the  person  to  whom  it  should  be  presented,  it 
may  be  presented  at  any  hour  of  the  day;  (see 
Apparent  maturity,  Sees.  199-201,  post); 

6.  If  the  principal  debtor  has  no  place  of  busi- 
ness, or  if  his  place  of  business,  or  residence, 
cannot,  with  reasonable  diligence,  be  ascertained, 
presentment  for  payment  is  excused. 65 


(55)  Civil  Code,  {3131 


148  NOTARY'S  MANUAL. 

This  section  relates  only  to  presentment  when 
necessary  to  charge  an  endorser  or  the  drawer, 
and  does  not  change  the  liability  of  the  principal 
debtor  to  be  sued  without  formal  demand.  (See 
Demand  not  necessary  to  charge  principal  debtor, 
Sec.  197,  supra.)  Read  also  Sees.  204-208,  post, 
which  relate  to  the  presentment  of  bills  of  ex- 
change for  payment  more  particularly. 

SECTION  199.  Apparent  maturity  of  negotiable 
instruments  generally.  The  apparent  maturity  of 
a  negotiable  instrument,  payable  at  a  particular 
time,  is  the  day  on  which,  by  its  terms,  it  be- 
comes due,  or  when  that  is  a  holiday,  the  next 
business  day.66 

SECTION  200.  Apparent  maturity  of  bill  pay- 
able at  sight  or  on  demand.  The  apparent  matur- 
ity of  a  bill  of  exchange  payable  at  sight  or  on 
demand  is, — 

1.  If  it  bears  interest,  one  year  after  its  date; 
or 

2.  If  it  does  not  bear  interest,  ten  days  after 
its  date,  in  addition  to  the  time  which  would  suf- 
fice, with  ordinary  diligence,  to  forward  it  for  ac- 
ceptance. 87 


(56)  Civil  Code,  53132 

(57)  Civil  Code,  §3134 


NOTARY'S  MANUAL.  149 

In  regard  to  the  presentment  of  such  a  bill — 
one  payable  at  sight  or  on  demand — for  payment, 
it  is  to  be  noticed  that  a  different  rule  exists  as  to 
the  time  for  presentment  of  a  bill  payable  on  de- 
mand or  at  sight  with  interest  and  one  payable 
without  interest.  In  the  first  case,  the  drawer 
and  endorsers  are  not  released  from  liability  by 
mere  delay  in  presenting  the  bill;  and  in  the  other 
case  they  are  exonerated  if  the  bill  is  not  pre- 
sented in  ten  days.  (See  Presentment  of  bills  of 
exchange  for  payment,  Sees.  204-208,  post.)  As 
to  when  a  bill  of  exchange  will  be  presumed  to  be 
dishonored,  see  Non-acceptance,  Sec.  191,  supra. 

SECTION  201.  Apparent  maturity  of  note  pay- 
able at  sight  or  on  demand.  The  apparent  matur- 
ity of  a  promissory  note  payable  at  sight  or  on 
demand  is, — 

1.  If  it  bears  interest,  one  year  after  its  date; 
or 

2.  If  it  does  not  bear  interest,  six  months  after 
its  date. 

Where  a  promissory  note  is  payable  at  a  certain 
time  after  sight  or  demand,  such  time  is  to  be 
added  to  the  periods  mentioned  above. 

If  a  promissory  note,  payable  on  demand,  or  at 
sight,  without  interest,  is  not  duly  presented  for 
payment  within  six  months  from  its  date,  the  en- 


150  NOTARY'S  MANUAL. 

dorsers  thereof  are  exonerated,  unless  such  pre- 
sentment is  excused.  58  But  mere  delay  in  pre- 
senting a  promissory  note,  payable  with  interest 
at  sight  or  on  demand,  does  not  exonerate  any 
party  thereto. 

SECTION  202.  Days  of  grace.  Days  of  grace 
are  not  allowed  in  this  state. 88 

SECTION  203.  Presentment,  when  excused. 
The  conditions  under  which  presentment  for  pay- 
ment may  be  excused  are  set  forth  in  other  parts 
of  this  manual,  and  it  is  only  necessary  to  refer 
to  them  here.  (See  Presentment,  how,  when 
and  where  made,  Sec.  198,  sub.  6,  supra;  Pre- 
sentment and  notice  of  dishonor,  when  excused, 
Sec.  222,  post;  Presentment  of  bills  of  exchange, 
when  excused,  Sec.  208,  post.) 

Presentment  of  Bills  of  Exchange  for  Payment. 

SECTION  204.  Where  made,  if  not  accepted. 
If  a  bill  of  exchange  is  by  its  terms  payable  at  a 
particular  place,  and  is  not  accepted  on  present- 
ment, it  must  be  presented  at  the  same  place  for 
payment,  when  presentment  for  payment  is  nec- 
essary. eo 


(58)  Civil  Code,  §§3135,  3136,  3248 

(59)  Civil  Code,  S3181 

(60)  Civil  Code,  §3211 


NOTARY'S  MANUAL.  151 

SECTION  205.  Where  made,  if  accepted.  A 
bill  of  exchange,  accepted  payable  at  a  particular 
place,  must  be  presented  at  that  place  for  pay- 
ment, when  presentment  for  payment  is  neces- 
sary, and  need  not  be  presented  elsewhere.  81 

SECTION  206.  When  to  be  made  if  payable  at 
sight  or  on  demand,  without  interest.  If  a  bill  of 
exchange,  payable  at  sight  or  on  demand,  without 
interest,  is  not  duly  presented  for  payment  within 
ten  days  after  the  time  in  which  it  could,  with 
reasonable  diligence,  be  transmitted  to  the  proper 
place  for  such  presentment,  the  drawer  and  en- 
dorsers are  exonerated,  unless  such  presentment 
is  excused.  62 

As  to  bill  payable  at  sight  or  on  demand  with 
interest,  see  next  section. 

SECTION  207.  Effect  of  delay  if  payable  at 
sight  or  on  demand  with  interest.  Mere  delay  in 
presenting  a  bill  of  exchange  payable,  with  in- 
terest, at  sight  or  on  demand,  does  not  exonerate 
any  party  thereto. 63  This  applies  also  to  promis- 
sory notes;  and  therefore,  in  the  case  of  a  note 
payable  at  sight  or  on  demand,  with  interest,  the 
endorser  is  not  released  from  liability  because  of 


(61)  Civil  Code,  §3212 

(62)  Civil  Code,  53213 

(63)  Civil  Code.  §3214 


152  NOTARY'S  MANUAL. 

mere  delay  in  presenting,  notwithstanding  its  ap- 
parent maturity.  (See  Apparent  maturity  of  note 
payable  at  sight  or  on  demand,  Sec.  201,  supra.) 

SECTION  208.  When  excused.  Presentment 
of  a  bill  of  exchange  for  payment,  as  well  as  for 
acceptance,  and  notice  of  its  dishonor  are  excused 
as  to  the  drawer,  if  he  forbids  the  acceptor  to  pay 
the  bill,  or  if,  at  the  time  of  drawing,  he  had  no 
reason  to  believe  that  the  drawee  would  pay  the 
bill.  (See  Presentment  for  acceptance,  when  ex- 
cused, Sec.  184,  supra.)  Also,  if  the  drawee  have 
no  place  of  business,  or  if  his  place  of  business  or 
residence  cannot  with  reasonable  diligence  be  as- 
certained, presentment  for  payment  is  excused. 
(See  Bill  of  Exchange,  where  payable,  Sec.  149, 
supra.) 

Extinction  of  Negotiable  Instruments. 

SECTION  209.  Obligation,  when  extinguished. 
The  obligation  of  a  party  to  a  negotiable  instru- 
ment is  extinguished, — 

1.  In  like  manner  with  that  of  parties  to  con- 
tracts in  general;  or 

2.  By  payment  of  the  amount  due  upon  the 
instrument,  at  or  after  its  maturity,  in  good  faith 
and  in  the  ordinary  course  of  business,  to  any 


NOTARY'S  MANUAL.  153 

person  having  actual  possession  thereof  and  en- 
titled by  its  terms  to  payment. 64 

SECTION  210.  Surrender  of  instrument  may  be 
required.  A  party  to  a  negotiable  instrument 
may  require,  as  a  condition  concurrent  to  its  pay- 
ment by  him, — 

1.  That  the  instrument  be  surrendered  to  him, 
unless  it  is  lost  or  destroyed,  or  the  holder  has 
other  claims  upon  it;  or 

2.  If  the  holder  has  a  right  to  retain  the  in- 
strument, and  does  retain  it,  then  that  a  receipt 
for  the  amount  paid,  or  an  exoneration  of  the 
party  paying,  be  written  thereon;  or 

3.  If  the  instrument  is  lost  or  destroyed,  then 
that  the  holder  give  to  him  a  bond,  executed  by 
himself  and  two  sufficient  sureties,  to  indemnify 
him  against  any  lawful  claim  thereon. 8S 

Dishonor  of  Negotiable  Instruments. 

SECTION  211.  A  negotiable  instrument  is  dis- 
honored when  it  is  either  not  paid  or  not  ac- 
cepted, according  to  its  tenor,  on  presentment  for 
the  purpose,  or  without  presentment  where  that 
is  excused.  „„ 


(64)  Civil  Code,  83164 

(65)  Civil  Code,  83137 

(66)  Civil  Code,  $3141 


154  NOTARY'S  MANUAL. 

If  dishonored,  notice  of  dishonor  must  be 
given  at  the  time  and  in  the  manner  required  by 
law  in  order  to  hold  the  endorser  or  drawer  liable, 
or,  if  the  instrument  is  protested,  the  next  duty 
to  perform  is  the  making  out  of  a  protest  and  giv- 
ing notice  of  protest.  (See  Rights  of  endorser, 
Sec.  178,  supra.)  This  is  due  to  the  endorser  or 
drawer  and  is  intended  to  protect  him  from  loss 
which  may  occur  by  reason  of  delay  in  making 
demand  for  payment  on  the  party  first  liable,  or 
which  he  may  sustain  by  having  no  notice  of  the 
fact  that  his  principal  has  failed  or  refused  to 
pay.  67  In  case  the  instrument  is  a  foreign  bill  it 
must  be  protested,  and  while  protest  is  not  strictly 
necessary  in  case  of  an  inland  bill  or  promissory 
note  as  said  before,  the  precaution  is  usually 
taken.  Notice  of  protest  is  given  in  the  same 
manner  as  notice  of  dishonor.  (See  Protest  and 
notice  of  protest,  Sees.  223-235,  post;  also  no- 
tice of  dishonor,  Sees.  212-222,  post.) 

Notice  of  Dishonor. 

SECTION  212.  By  whom  given.  Notice  of  the 
dishonor  of  a  negotiable  instrument  may  be 
given,— 

1.     By  a  holder  thereof;  or 


(67)  Stanley  v.  McElrath,  86  Cal.,  457 


NOTARY'S  MANUAL.  156 

2.  By  any  party  to  the  instrument  who  might 
be  compelled  to  pay  it  to  the  holder,  and  who 
would,  upon  taking  it  up,  have  a  right  to  reim- 
bursement from  the  party  to  whom  the  notice  is 
given.68  (See  Notice  of  protest,  Sec.  231,  post.) 

SECTION  213.  Form  of.  A  notice  of  dishonor 
may  be  given  in  any  form  which  describes  the  in- 
strument with  reasonable  certainty,  and  substan- 
tially informs  the  party  receiving  it  that  the  in- 
strument has  been  dishonored.  M  The  sufficiency 
of  the  notice  of  dishonor,  has  been  the  subject  of 
much  litigation,  and  this  paper  should  be  carefully 
drawn. 

[Appendix  Form  No.  13.] 

SECTION  214.  How  served.  A  notice  of  dis- 
honor may  be  given, — 

1.  By  delivering  it  to  the  party  to  be  charged, 
personally,  at  any  place;  or 

2.  By  delivering  it  to  some  person  of  discre- 
tion at  the  place  of  residence  or  business  of  such 
party,  apparently  acting  for  him;  or 

3.  By  properly  folding  the  notice,  directing  it 
to  the  party  to  be  charged,  at  his  place  of  resi- 
dence, according  to  the  best  information  that  the 
person  giving  the  notice  can  obtain,  depositing  it 


(68)  Civil  Code,  13142 

(69)  Civil  Cod*.  {3143 


150  NOTARY'S  MANUAL. 

in  the  post-office  most  conveniently  accessible 
from  the  place  where  the  presentment  was  made, 
and  paying  the  postage  thereon.  70  (See  When 
mailed,  Sec.  217,  post.) 

SECTION  215.  How  given  in  case  of  death  0} 
party  to  whom  it  is  to  be  given.  In  case  of  the 
death  of  a  party  to  whom  notice  of  dishonor 
should  otherwise  be  given,  the  notice  must  be 
given  to  one  of  his  personal  representatives;  or 
if  there  are  none,  then  to  any  member  of  his  fam- 
ily who  resided  with  him  at  his  death;  or  if  there 
is  none,  then  it  must  be  mailed  to  his  last  place  of 
residence,  as  prescribed  by  subdivision  3  of  the 
last  section.  A  notice  of  dishonor  sent  to  a  party 
after  his  death,  but  in  ignorance  thereof,  and  in 
good  faith,  is  valid. 71 

SECTION  216.  When  to  be  given.  Notice  of 
dishonor,  when  given  by  the  holder  of  an  instru- 
ment or  his  agent,  otherwise  than  by  mail,  must 
be  given  on  the  day  of  dishonor,  or  on  the  next 
business  day  thereafter.  7,  (See  How  given  by 
agent,  Sec.  218,  post.) 

SECTION  217.  When  mailed.  When  notice 
of  dishonor  is  given  by  mail,  it  must  be  deposited 


(70)  Civil  Code,  §3144 

(71)  Civil  Code,  $§3145,  3146 

(72)  Civil  Code,  §3147 


NOTARY'S  MANUAL.  167 

in  the  post-office  in  time  for  the  first  mail  which 
closes  after  noon  on  the  first  business  day  suc- 
ceeding the  dishonor,  and  which  leaves  the  place 
where  the  instrument  was  dishonored,  for  the 
place  to  which  the  notice  should  be  sent.73 

SECTION  218.  How  given  by  agent.  When 
the  holder  of  a  negotiable  instrument,  at  the  time 
of  its  dishonor,  is  a  mere  agent  for  the  owner,  it 
is  sufficient  for  him  to  give  notice  to  his  principal 
in  the  same  manner  as  to  an  endorser,  and  his 
principal  may  give  notice  to  any  other  party  to  be 
charged,  as  if  he  were  himself  an  endorser.  And 
if  an  agent  of  the  owner  employs  a  sub-agent,  it 
is  sufficient  for  each  successive  agent  or  sub-agent 
to  give  notice  in  like  manner  to  his  own  princi- 
pal.7« 

SECTION  219.  Every  additional  party  has  his 
day  to  give  notice.  Every  party  to  a  negotiable 
instrument,  receiving  notice  of  its  dishonor,  has 
the  like  time  thereafter  to  give  similar  notice  to 
prior  parties  as  the  original  holder  had  after  its 
dishonor.  But  this  additional  time  is  available 
only  to  the  particular  party  entitled  thereto. 78 

SECTION  220.  Effect  of.  A  notice  of  the  dis- 
honor of  a  negotiable  instrument,  if  valid  in  favor 

(73)  Civil  Code,  §3148 

(74)  Civil  Code,  {3149 

(75)  Civil  Code,  J3150 


158  NOTARY'S  MANUAL. 

of  the  party  giving  it,  inures  to  the  benefit  of  all 
other  parties  thereto  whose  right  to  give  the  like 
notice  has  not  then  been  lost.78 

SECTION  221.  When  excused.  Notice  of  dis- 
honor is  excused, — 

1.  When  the  party  by  whom  it  should  be 
given  cannot,  with  reasonable  diligence,  ascertain 
either  the  place  of  residence  or  business  of  the 
party  to  be  charged;  or 

2.  When  there  is  no  post-office  communica- 
tion between  the  town  of  the  party  by  whom  the 
notice  should  be  given  and  the  town  in  which  the 
place  of  residence  or  business  of  the  party  to  be 
charged  is  situated;  or 

3.  When  the  party  to  be  charged  is  the  same 
person  who  dishonors  the  instrument;  or 

4.  When  the  notice  is  waived  by  the  party  en- 
titled thereto. 77 

Notice  is  also  excused  under  the  conditions  set 
forth  in  the  following  paragraph. 

SECTION  222.  Presentment  and  notice  when 
excused.  Presentment  and  notice  are  excused  as 
to  any  party  to  a  negotiable  instrument  who  in- 


(78)  Civil  Code,  13151 
(77)  Civil  Code.  S3155 


NOTARY'S  MANUAL.  159 

forms  the  holder  within  ten  days  before  its  ma- 
turity that  it  will  be  dishonored. 

If,  before  or  after  the  maturity  of  an  instru- 
ment, an  endorser  has  received  full  security  for 
the  amount  thereof,  or  the  maker  has  assigned 
all  his  estate  to  him  as  such  security,  presentment 
and  notice  to  him  are  excused. 

Delay  in  presentment,  or  in  giving  notice  of 
dishonor,  is  excused  when  caused  by  circum- 
stances which  the  party  delaying  could  not  have 
avoided  by  the  exercise  of  reasonable  care  and 
diligence. 

A  waiver  of  presentment  waives  notice  of  dis- 
honor also,  unless  the  contrary  is  expressly  stipu- 
lated; but  a  waiver  of  notice  does  not  waive  pre- 
sentment. 

A  waiver  of  protest  on  any  negotiable  instru- 
ment other  than  a  foreign  bill  of  exchange  waives 
presentment  and  notice. 

Protest. 

SECTION  223.  Definition  and  nature  of.  The 
word  "protest"  is  the  name  of  the  formal  instru- 
ment drawn  up  and  signed  by  a  notary  public  al- 
leging the  due  presentment  and  dishonor  of  a  bill 
or  note  and  declaring  that  the  notary  does  protest 
the  same  for  non-acceptance  or  non-payment  as 
the  case  may  be,  (see  How  made,  Sec.  226, 


160  NOTARY'S  MANUAL. 

post),  but  as  used  generally  it  includes  all  the 
steps  necessary  to  protect  the  payee  against  loss 
by  reason  of  the  non-acceptance  or  non-payment 
of  a  bill,  or  of  the  non-payment  of  a  note  by  the 
maker,  and  to  fix  the  liability  of  the  drawer  of 
the  bill  or  the  endorser  of  the  note.  These  steps 
are,  if  the  instrument  is  a  bill,  presentment  for 
acceptance  to  the  drawee,  and  in  case  of  refusal 
or  failure  to  accept,  the  drawing  up,  or  "writing" 
of  a  protest  for  non-acceptance,  and  the  giving  of 
due  notice  of  protest  to  the  drawer;  if  the  instru- 
ment is  a  bill  which  has  been  accepted  or  a  prom- 
issory note,  presentment  for  payment  at  maturity 
to  the  acceptor  or  maker,  and  in  case  of  dishonor, 
protest  for  non-payment,  and  due  and  reasonable 
notice  of  protest  for  non-payment  to  the  parties 
to  be  charged,  viz.:  the  drawer  and  endorsers  of 
the  bill  or  the  endorsers  of  the  note.  As  already 
indicated,  the  purpose  is  to  entitle  the  holder  to 
recover  the  amount  from  the  other  parties  to  the 
bill.  It  does  not  raise  any  new  debt  or  create  any 
further  responsibility,  but  only  serves  to  give 
formal  notice  that  the  bill  or  note  is  not  accepted 
or  paid. 

For  failure  to  properly  protest  a  note  so  as 
to  charge  an  endorser,  notary  is  liable  on  his 
bond. 78 

(78)  Consolidated  Lumber  Co.  v.  Fidelity,  etc.  Co.,  161  Cal.,  397 


•f   1,  -'    *  . 


NOTARY'S  MANUAL.  161 

SECTION  224.  When  necessary.  Notice  of  the 
dishonor  of  a  foreign  bill  of  exchange  can  be 
given  only  by  notice  of  its  protest.  78  It  is  a  gen- 
eral law  that  in  order  to  fix  the  liability  of  the 
drawer  and  endorsers  of  a  foreign  bill,  the  same 
must  be  protested.  Protest,  therefore,  is  indis- 
pensable to  a  foreign  bill,  and  in  case  of  action  to 
recover  on  the  instrument  the  facts  of  dishonor 
cannot  be  proved  in  any  other  way.  The  law 
does  not  require  the  protest  of  inland  bills  and 
promissory  notes,  but  the  law  allows  it,  and  when 
made  the  protest  has  the  same  force  as  if  it  was 
necessary  to  make  it.  (See  Foreign  and  inland 
bills,  Sec.  151,  supra.)  In  cases,  however,  where 
protest  is  not  essential  and  therefore  not  made, 
the  same  degree  of  diligence  must  be  exercised  in 
making  demand  and  giving  notice  of  dishonor  as 
in  cases  where  formal  protest  is  required. 

SECTION  225.  By  whom  made.  Protest  must 
be  made  by  a  notary  public,  if  with  reasonable 
diligence  one  can  be  obtained;  and  if  not,  then  by 
any  reputable  person,  in  the  presence  of  two  wit- 
nesses. 80 

SECTION  226.  How  made.  Protest  must  be 
made  by  an  instrument  in  writing,  giving  a  literal 


(79)  Civil  Code,  83225 

(80)  Civil  Code.  J3226 


162  NOTARY'S  MANUAL. 

copy  of  the  bill  of  exchange,  with  all  that  is  writ- 
ten thereon,  or  annexing  the  original;  stating  the 
presentment,  and  the  manner  in  which  it  was 
made;  the  presence  or  absence  of  the  drawee  or 
acceptor,  as  the  case  may  be;  the  refusal  to  accept 
or  to  pay,  or  the  inability  of  the  drawee  to  give  a 
binding  acceptance;  and  in  case  of  refusal,  the 
reason  assigned,  if  any;  and  finally,  protesting 
against  all  the  parties  to  be  charged.  81 

[Appendix  Forms  Nos.  14-18.] 

SECTION  227.  Where  made.  A  protest  for 
non-acceptance  must  be  made  in  the  city  or  town 
in  which  the  bill  is  presented  for  acceptance;  and 
a  protest  for  non-payment,  in  the  city  or  town  in 
which  it  is  presented  for  payment. 82 

SECTION  228.  When  made.  A  protest  must 
be  noted  on  the  day  of  presentment,  or  on  the 
next  business  day;  but  it  may  be  written  out  at 
any  time  thereafter. 8S 

"The  'noting'  may  be  either  upon  the  instru- 
ment protested,  or  in  the  notary's  register.  It  is 
a  mere  memorandum  of  the  fact  of  presentment, 
of  refusal  of  acceptance  or  payment,  the  name  of 
the  party  to  whom  and  the  place  where  presented, 
with  the  time  and  date,  and  signed  by  the  initials 


(81)  Civil  Code,  13227 
5?  (82)  Civil  Code,  J3228 
§i'(83)  CSvil  Code,  }3229 


NOTARY'S  MANUAL.  103 

of  the  notary.  When  this  is  done,  the  full  and 
complete  protest  may  be  made  out  at  any  time  af- 
terward, which  act  is  known  as  'extending  the 
protest  '."„  4 

SECTION  229.  Effect  of.  The  protest  of  a  no- 
tary, under  his  hand  and  official  seal,  of  a  bill 
of  exchange,  or  promissory  note,  for  non-accept- 
ance or  non-payment,  stating  the  presentment  for 
acceptance  or  payment,  and  the  non-acceptance 
or  non-payment  thereof,  the  service  of  notice  on 
any  or  all  of  the  parties  to  such  bill  of  exchange 
or  promissory  note,  and  specifying  the  mode  of 
giving  such  notice,  and  the  reputed  place  of  resi- 
dence of  the  party  to  such  bill  of  exchange  or 
promissory  note,  and  of  the  party  to  whom  the 
same  was  given,  and  the  post-office  nearest  there- 
to, is  prima  facie  evidence  of  the  facts  contained 
therein.  88 

SECTION  230.  When  excused.  The  want  of 
protest  of  a  foreign  bill  of  exchange,  or  delay  in 
making  the  same,  is  excused  in  like  cases  with 
the  want  or  delay  of  presentment. 86 

SECTION  231.  Notice  of  protest.  Notice  of 
protest  must  be  given  in  the  same  manner  as  no- 


(84)  Proffatt  on  Notaries.  {129 

(85)  Political  Code,  J795 

(86)  Civil  Code,  §3230 


164  NOTARY'S  MANUAL. 

tice  of  dishonor,  except  that  it  may  be  given  by 
the  notary  who  makes  the  protest. 87  The  giving 
of  notice  of  dishonor  is  a  part  of  the  official  duty 
of  a  notary  for  neglect  of  which  he  may  be  held 
liable  on  his  official  bond.88 

[Appendix  Form  No.  13.] 

SECTION  232.  Waiver  of.  If  a  foreign  bill  of 
exchange  on  its  face  waives  protest,  notice  of  dis- 
honor may  be  given  to  any  party  thereto,  in  like 
manner  as  of  an  inland  bill;  except  that  if  any  en- 
dorser of  such  a  bill  expressly  requires  protest  to 
be  made,  by  a  direction  written  on  the  bill  at  or 
before  his  endorsement,  protest  must  be  made, 
and  notice  thereof  given  to  him  and  to  all  subse- 
quent endorsers.  gQ 

SECTION  233.  Payment  for  honor.  One  who 
pays  a  foreign  bill  of  exchange  for  honor  must 
declare,  before  payment,  in  the  presence  of  a  per- 
son authorized  to  make  protest,  for  whose  honor 
he  pays  the  same,  in  order  to  entitle  him  to  reim- 
bursement. 90 

SECTION  234.  Damages  allowed.  Damages  are 
allowed  as  hereinafter  prescribed,  as  a  full  com- 
pensation for  interest  accrued  before  notice  of 

(87)  Civil  Code,  §3231 

(88)  Tevis  v.  Randall,  6  Gal.,  633 

(89)  Civil  Code,  §3232 

(90)  Civil  Code.  §3233 


NOTARY'S  MANUAL.  165 

dishonor,  re-exchange,  expenses,  and  all  other 
damages,  in  favor  of  holders  for  value  only,  upon 
bills  of  exchange  drawn  or  negotiated  within  this 
state,  and  protested  for  non-acceptance  or  non- 
payment. 

Damages  are  allowed  under  the  last  section 
upon  bills  drawn  upon  any  person, — 

1.  If  drawn  upon  a  person  in  this  state,  two 
dollars  upon  each  one  hundred  dollars  of  the 
principal  sum  specified  in  the  bill. 

2.  If  drawn  upon  a  person  out  of  this  state, 
five  dollars  upon  each  one  hundred  dollars  of  the 
principal  sum  specified  in  the  bill. 

3.  If  drawn  upon  a  person  in  any  place  in  a 
foreign  country,  fifteen  dollars  upon  each  one 
hundred  dollars  of  the  principal  sum  specified  in 
the  bill. 

Such  damages  are  estimated  as  follows:  If  the 
amount  of  a  protested  bill  of  exchange  is  ex- 
pressed in  money  of  the  United  States,  damages 
are  estimated  upon  such  amount  without  regard 
to  the  rate  of  exchange.  If  the  amount  of  a  pro- 
tested bill  of  exchange  is  expressed  in  foreign 
money,  damages  are  estimated  upon  the  value  of 
a  similar  bill  at  the  time  of  protest,  in  the  place 


166  NOTARY'S  MANUAL. 

nearest  to  the  place  where  the  bill  was  negotiated 
and  where  such  bills  are  currently  sold.81 

SECTION  235.  Interest  also  allowed.  From  the 
time  of  notice  of  dishonor  and  demand  of  pay- 
ment, lawful  interest  must  be  allowed  upon  the 
aggregate  amount  of  the  principal  sum  specified 
in  the  bill,  and  the  damages  mentioned  in  the  pre- 
ceding section. 


(91)  Civil  Code,  853234-5,  3237-8 


NOTARY'S  MANUAL.  167 

APPENDIX. 

FORMS. 

CERTIFICATES  OF  ACKNOWLEDGMENT. 
No.  1. — General  Form. 

STATE  OP  CALIFORNIA  ( 

>   go 

City  and  County  of  San  Francisco  \ 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  J.  B.,  a  no- 
tary public  in  and  for  the  said  city  and  county  of 
San  Francisco,  state  of  California,  personally  ap- 
peared M.  A.,  known  to  me  to  be  the  person 
whose  name  is  subscribed  to  the  within  instru- 
ment, and  acknowledged  to  me  that  he  executed 
the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day 
and  year  in  this  certificate  first  above  writ- 
ten. 

/.*., 
Notary  Public 

in  and  for  the  City  and  County  of  San  Francisco, 
State  of  California. 


'S3 


168  NOTARY'S  MANUAL. 

No.  2.— Husband  and  Wife  (or  Plural). 

STATE  OF  CALIFORNIA  f 
County  of  Santa  Clara  (' 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  C.  A.,  a 
notary  public  in  and  for  the  said  county  of  Santa 
Clara,  state  of  California,  personally  appeared 
H.  W.  and  M.  W.,  his  wife,  known  to  me  to  be 
the  persons  whose  names  are  subscribed  to  the 
within  instrument,  and  they  and  each  of  them  ac- 
knowledged to  me  that  they  and  each  of  them  re- 
spectively executed  the  same. 

In  Witness  Whereof,  etc. 

No.  3. — General — When  Party  is  Proven. 

STATE  OF  CALIFORNIA  f 
County  of  Marin      V 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  A.  B.,  a 
notary  public  in  and  for  the  said  county  of  Marin, 
state  of  California,  personally  appeared  Joseph 
Smith,  satisfactorily  proved  to  me  to  be  the  per- 
son described  in  and  who  executed  the  within  in- 
strument by  the  oath  of  P.  B.,  &  competent  and 
credible  witness  for  that  purpose  by  me  duly 
sworn,  and  he,  the  said  Joseph  Smith,  acknowl- 
edged to  me  that  he  executed  the  same. 

In  Witness  Whereof,  etc. 


'SS 


NOTARY'S  MANUAL.  169 

No.  4. — Corporation — President  or  Secretary. 
STATE  OF  CALIFORNIA     f 

>  QQ 

County  of  Santa   Barbara} 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  M.  T.,  a 
notary  public  in  and  for  the  said  county  of  Santa 
Barbara,  state  of  California,  personally  appeared 
C.  A.  R.,  known  to  me  to  be  the  president  (or  sec- 
retary) of  the  corporation  that  executed  the  with- 
in instrument,  and  acknowledged  to  me  that  such 
corporation  executed  the  same. 

In  Witness  Whereof,  etc. 

No.  5. — Corporation — President,  Secretary  or  Other  Person. 

STATE  OF  CALIFORNIA  ( 

>  go 

County  of  San  Mateo   \ 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  R.  G.,  a 
notary  public  in  and  for  the  said  county  of  San 
Mateo,  state  of  California,  personally  appeared 
L.  A.  H.,  known  to  me  to  be  the  manager  (presi- 
dent, secretary,  or  other  person)  of  the  corpora- 
tion described  in  and  that  executed  the  within  in- 
strument and  also  known  to  me  to  be  the  person 
who  executed  it  on  behalf  of  the  corporation 
therein  named,  and  he  acknowledged  to  me  that 
such  corporation  executed  the  same. 

In  Witness  Whereof,  etc. 


170  NOTARY'S  MANUAL. 

No.  6. — Corporation — by  Two  Officers. 

STATE  OF  CALIFORNIA 

oc 

County  of  Yuba. 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  P.  B.,  a 
notary  public  in  and  for  the  county  of  Yuba,  state 
of  California,  personally  appeared  A.  B.,  known 
to  me  to  be  the  vice-president,  and  C.  D.,  known 
to  me  to  be  the  secretary  of  the  corporation  de- 
scribed in  and  that  executed  the  within  instru- 
ment, and  also  known  to  me  to  be  the  persons 
who  executed  it  on  behalf  of  the  corporation 
therein  named,  and  they  and  each  of  them  ac- 
knowledged to  me  that  such  corporation  executed 
the  same. 

In  Witness  Whereof,  etc. 

No.  7. — Attorney  in  Fact. 
STATE  OF  CALIFORNIA  ( 

>  go 

County  of  Santa  Cruz.  \ 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  S.  M.,  a 
notary  public  in  and  for  the  county  of  Santa  Cruz, 
state  of  California,  personally  appeared  /.  P., 
known  to  me  to  be  the  person  whose  name  is  sub- 
scribed to  the  within  instrument  as  the  attorney 
in  fact  of  L.  P.,  and  the  said  J.  P.  duly  acknowl- 


NOTARY'S  MANUAL.  171 

edged  to  me  that  he  subscribed  the  name  of  L.  P. 
thereto  as  principal  and  his  own  name  as  attorney 
in  fact. 

In  Witness  Whereof,  etc. 

CERTIFICATES  OF  PROOF. 
No.  8. — Subscribing  Witness. 

STATE  OF  CALIFORNIA 

oa 

County  of  Solano. 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  A.  S.,  a 
notary  public  in  and  for  the  county  of  Solano, 
state  of  California,  personally  appeared  W.  P. 
known  to  me  to  be  the  same  person  whose  name 
is  subscribed  to  the  within  instrument  as  a  wit- 
ness thereto,  who,  being  by  me  duly  sworn,  de- 
posed and  said:  That  he  resides  in  the  town  of 
Suisun;  that  he  was  present  and  saw  B.  A.  (per- 
sonally known  to  him  to  be  the  person  described 
in  and  who  executed  the  said  instrument  as  party 
thereto),  sign,  seal  and  deliver  the  same;  and  that 
the  said  B.  A.  duly  acknowledged  in  the  presence 
of  said  affiant  that  he  executed  the  same,  and  that 
he,  the  said  affiant,  thereupon  and  at  his  request, 
subscribed  his  name  as  a  witness  thereto. 

In  Witness  Whereof,  etc. 


172  NOTARY'S  MANUAL. 

No.   9.— Handwriting— When   All   the   Parties   and   Sub- 
scribing Witnesses  Are  Dead. 

STATE  OF  CALIFORNIA 

oo 

County  of  Sonoma. 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  R.  D.,  a 
notary  public  in  and  for  the  county  of  Sonoma, 
state  of  California,  personally  appeared  C.  E., 
known  to  be  a  credible  witness,  and  after 
being  by  me  sworn  in  the  manner  and  form  re- 
quired by  law,  I  exhibited  to  him  an  instrument 
in  writing,  to-wit,  the  deed  to  which  this  certifi- 
cate is  attached,  upon  which  is  written  the  signa- 
ture of  H.  L.  as  grantor  and  K.  A.  as  subscribing 
witness.  After  being  sworn,  the  said  C.  E.  testi- 
fied in  substance  as  follows:  That  said  instrument 
has  never  been  acknowledged;  that,  at  the  date 
of  said  instrument,  he  knew  personally  H.  L.,  the 
said  grantor,  and  K.  A.,  the  said  subscribing  wit- 
ness; that  the  parties  and  all  the  subscribing  wit- 
nesses to  said  instrument  are  dead;  that  he  then 
knew  and  now  knows  the  handwriting  of  the  said 
grantor  and  of  the  said  subscribing  witness;  that 
the  signature  of  the  said  grantor  H.  L.  is  genuine, 
and  the  signature  of  said  K.  A.,  the  only  subscrib- 
ing witness,  is  genuine ;  that  he,  the  said  witness, 


NOTARY'S  MANUAL.  173 

resides  in  said  county  of  Sonoma,  state  of  Cali- 
fornia. 

In  Witness  Whereof,  etc. 

No.    10. — Handwriting — When    Parties    and    Subscribing 
Witnesses  Are  Nonresidents. 

STATE  OF  CALIFORNIA  I 

>  QQ 

County  of  Stanislaus.  \ 

On  this  first  day  of  March  in  the  year  one  thou- 
sand nine  hundred  and  six,  before  me,  G.  H.,  a 
notary  public  in  and  for  the  county  of  Stanislaus, 
state  of  California,  personally  appeared  S.  T. 
known  to  me  to  be  the  person  whose  name  is  sub- 
scribed to  the  instrument  to  which  this  certificate 
is  annexed,  as  a  witness  to  the  genuineness  of  the 
signature  of  E.  D.,  the  grantor,  and  the  genuine- 
ness of  the  signature  of  F.  P.,  the  subscribing  wit- 
ness to  said  instrument.  The  said  S.  T.  was 
sworn  by  me  in  the  manner  and  form  required  by 
law,  and  testified  in  substance  as  follows:  That 
he  personally  knew  E.  D.,  the  grantor,  and  F.  P., 
the  subscribing  witness,  and  also  the  grantee  in 
said  instrument  named  at  the  time  said  instru- 
ment was  executed,  to-wit,  at  the  city  of  Modesto, 
County  of  Stanislaus,  on  the  second  day  of  April 
in  the  year  1901;  that  since  the  execution  of  said 
instrument  both  of  the  parties  to  said  instrument 


174  NOTARY'S  MANUAL. 

and  F.  P.  the  sole  subscribing  witness  to  said  in- 
strument have  become  nonresidents  of  the  state  of 
California,  to-wit,  they  reside  in  the  city  of  Paris, 
Republic  of  France;  that  he,  the  said  witness,  is 
well  acquainted  with  the  signature  of  the  grantor 
and  with  the  signature  of  the  said  subscribing 
witness,  and  that  the  signature  of  the  said  grantor 
to  said  instrument  and  also  the  signature  of  the 
said  subscribing  witness,  are  genuine;  that  he  is 
a  resident  of  the  town  of  Newman,  county  of 
Stanislaus,  state  of  California,  and  that  he  sab- 
scribed  his  name  to  said  instrument  as  a  witness 
to  the  genuineness  of  the  signatures  of  the  said 
grantor  and  the  said  subscribing  witness  respec- 
tively. 

In  Witness  Whereof,  etc. 

No.    11. — Handwriting — When    Place    of    Residence    Is 
Unknown. 

STATE  OF  CALIFORNIA  f 

>  gg 

County  of  Solano.      \ 

(Proceed  as  in  No.  9  down  to  and  including  the 
words  "After  being  duly  sworn  the  said  C.  E, 
testified  in  substance  as  follows,"  and  then  add:) 
That  he  personally  knew  H.  L.  the  grantor  and, 
the  subscribing  witness,  K.  A.,  at  the  date  of  said 


NOTARY'S  MANUAL.  175 

instrument ;  that  the  place  of  residence  of  the  par- 
ties and  all  the  subscribing  witnesses  to  said  in- 
strument is  unknown  to  the  said  C.  E.;  that  he, 
the  said  C.  E.  is  the  grantee  named  in  said  instru- 
ment; that  said  instrument  was  never  acknowl- 
edged, and  he  desires  to  have  it  proved  so  that  it 
may  be  recorded;  that  he  has  exercised  due  dili- 
gence to  ascertain  the  residence  of  the  parties  and 
of  the  subscribing  witnesses  by  making  inquiries 
at  their  last  known  places  of  residence,  by  adver- 
tising in  three  daily  papers  published  at  their  last 
known  places  of  residence,  for  one  week,  and  by 
personal  inquiries  among  their  friends,  family 
and  acquaintances,  and  he  cannot  ascertain  the 
place  of  residence  of  all  or  any  of  said  parties; 
that  he  is  well  acquainted  with  the  signature  of 
the  said  grantor  and  with  the  signature  of  the 
said  subscribing  witness,  and  that  the  signature 
of  the  said  grantor  to  said  instrument  and  also  the 
signature  of  the  said  subscribing  witness,  are 
genuine;  that  he,  the  said  C.  E.  is  a  resident  of 
the  city  of  Fairfield,  county  of  Solano,  state  of 
California. 

In  Witness  Whereof,  etc. 


176  NOTARY'S  MANUAL. 

CERTIFICATE  TO  DEPOSITION. 
No.  12. — General  Form. 

STATE  OF  CALIFORNIA  f 

/  ss 
County  of  Placer.      \ 

I,  A.  B.  C.,  a  notary  public  in  and  for  said 
county,  do  hereby  certify:  That  B.  A.,  the  witness 
in  the  foregoing  deposition  named,  was  by  me 
duly  sworn;  that  said  deposition  was  then  taken 
at  the  time  and  place  mentioned  in  the  annexed 
order  (or  stipulation),  to-wit,  at  my  office  of  the 
county  of  Placer,  state  of  California,  and  on  the 
first  day  of  March,  1906,  between  the  hours  of 
10  a.  m.  and  3  p.  m.  of  that  day;  that  said  deposi- 
tion was  reduced  to  writing  by  me  (or  taken  in 
short-hand  by  C.  P.  and  thereafter  transcribed) 
and  when  completed  was  by  me  carefully  read  to 
said  witness,  and  being  by  him  corrected,  was  by 
him  subscribed  in  my  presence. 

In  Witness  Whereof,  etc. 

NOTICE  OF  PROTEST. 
No.  13. — Of  Promissory  Note. 

UNITED  STATES  OF  AMERICA} 
STATE  OF  CALIFORNIA       >ss 

County  of  Alameda. 
Sir: 

Please  take  notice  that  a  certain  promissory 
note  dated  March  1,  1905,  for  the  sum  of  three 


NOTARY'S  MANUAL.  177 

thousand  dollars,  payable  thirty  days  after  date, 
made  by  P.  L.  in  favor  of  T.  R.  and  endorsed  by 
you,  was  this  day  presented  by  me,  a  notary  pub- 
lic, to  said  P.  L.,  the  maker  of  the  said  note,  and 
payment  thereof  demanded,  which  was  refused, 
and  the  said  promissory  note  having  been  dishon- 
ored the  same  was  this  day  protested  by  me  for 
the  nonpayment  thereof,  and  the  holder  looks  to 
you  for  the  payment  thereof,  together  with  all 
costs,  charges,  interest,  expenses,  and  damages 
already  accrued,  or  that  may  hereafter  accrue 
thereon  by  reason  of  the  nonpayment  of  said 
promissory  note. 


Oakland,  Cal.  March  31,  1905. 
Note:  This  form  can  be  easily  made  applicable 
to  the  case  of  a  bill  of  exchange. 

PROTEST. 

No.  14.— Of  Note  Payable  at  Particular  Place— Notice  of 
Protest  Mailed. 

UNITED  STATES  OF  AMERICA     ^ 

STATE  OF  CALIFORNIA  >ss 

City  and  County  of  San  Francisco. ) 

On  the  80th  day  of  March,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  five,  at  the 
request  of  M.  B.,  holder  of  the  promissory  note 


178  NOTARY'S  MANUAL. 

hereinafter  set  forth,  I,  H.  K.,  a  notary  public 
duly  commissioned  and  sworn,  dwelling  in  the 
city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, did,  during  business  hours  of  said  day, 
present  the  original  promissory  note  (a  copy  of 
which  is  endorsed  on  the  reverse  side  of  this 
sheet)  at  the  Bank  of  California  in  the  city  and 
county  of  San  Francisco,  where  the  same  is  made 
payable,  and  demanded  payment  thereof  from  the 
paying  teller,  which  he  refused,  saying:  "No 
authority  to  pay." 

Whereupon  I,  the  said  notary,  at  the  request 
aforesaid,  did  protest,  and  by  these  presents  do 
publicly  protest,  as  well  as  against  the  makers  and 
endorsers  as  against  all  others  whom  it  doth  or 
may  concern,  for  exchange,  re-exchange,  and  all 
costs,  damages,  and  interest,  already  incurred  and 
to  be  hereafter  incurred  for  the  nonpayment  of 
the  said  promissory  note. 

I  do  hereby  certify  that  on  the  80th  day  of 
March,  A.  D.  1905  notice  of  protest,  demand 
and  nonpayment  of  the  above  mentioned  promis- 
sory note  was  served  upon  A.  B.  and  C.  D.,  en- 
dorsers, by  depositing  the  same  in  the  United 
States  Post  Office  in  this  city,  postage  fully  pre- 


NOTARY'S  MANUAL.  179 

paid  thereon,  directed  to  them  respectively  as 
follows: 

A.  B.,  Sacramento,  California; 
C.  D.,  Santa  Cruz,  California; 
such  being  the  reputed  places  of  residence  of  said 
respective  parties  and  the  post  offices  nearest 
thereto,  according  to  the  best  information  I  could 
obtain. 

Thus  done  and  protested  in  the  eity  and  county 
of  San  Francisco,  state  of  California  aforesaid, 
the  days  and  years  above  written. 

(Seal)  H.  K. 

Notary  Public 

in  and  for  the  city  and  county  of  San  Francisco, 
state  of  California. 

No.   15. — When  Presented  to  Maker  Personally — Notices 
Served  Personally,  Etc. 

(Proceed  as  in  No.  14  down  to  "(a  copy  of 
which  is  endorsed  on  the  reverse  side  of  this 
sheet)",  to  the  maker  in  the  city  and  county  of 
San  Francisco,  state  of  California,  and  demanded 
payment  thereof  from  him  personally,  which  he 
refused  saying,  "I  have  no  money." 

Whereupon  (proceed  as  in  No.  14  to  end  of 
paragraph.) 


180  NOTARY'S  MANUAL. 

I  do  hereby  certify  that  on  the  30th  day  of 
March,  1905,  notice  of  protest  demand  and  non- 
payment of  the  above  mentioned  promissory  note 
was  served  upon  M.  B,  endorser,  by  delivering 
the  same  to  him  personally  in  said  city  (or,  upon 
T.  R.  endorser,  by  delivering  the  same  at  his  place 
of  business,  No.  3  Market  Street,  in  this  city,  to 
a  person  of  discretion  in  charge  thereof,  appar- 
ently acting  for  him). 

(Close  as  in  No.  14.) 

No.  16. — When  Maker  Cannot  Be  Found  and  Has  No 
Known  Place  of  Business  or  Residence— Notices 
Mailed. 

(Proceed  as  in  No.  14  down  to  "  (a  copy  of 
which  is  endorsed  on  the  reverse  side  of  this 
sheet)",  to  several  persons  at  several  places  in 
said  city,  and  did  make  due  and  diligent  search 
and  inquiry  for  the  maker  to  demand  payment 
thereof,  but  I  could  not  find  him  or  anyone  to  pay 
said  note.  I  was  credibly  informed  that  said  A. 
B.  did  not  reside  here  and  had  no  office  or  place  of 
business  in  San  Francisco. 

Whereupon  (proceed  as  in  No.  14  to  end  of 
paragraph.) 

I  do  hereby  certify  (proceed  as  in  No.  14). 


NOTARY'S  MANUAL.  181 

No.   17. — When  Last  Place  of  Residence  Is  Known  but 
Maker  Cannot  Be  Found — Notices  Mailed. 

(Proceed  as  in  No.  14  down  to  and  including 
"  (a  copy  of  which  is  endorsed  on  the  reverse 
side  of  this  sheet)",  at  No.  8500  Pine  Street  in 
this  city,  which  I  was  informed  was  the  last  re- 
puted place  of  residence  in  this  city  of  T.  B.  the 
maker,  the  demanded  payment  thereof  from  a 
person  in  charge  of  said  place  of  residence,  which 
he  refused  saying  "A.  B.  formerly  lived  here  but 
I  do  not  know  his  present  address." 

Whereupon  (proceed  as  in  No.  14  to  the  end.) 

No.  18. — When  Bill  of  Exchange  Is  Accepted  for  Honor — 
Notices  Mailed. 

UNITED  STATES  OF  AMERICA     \ 

STATE  OF  CALIFORNIA  >ss 

City  and  County  of  San  Francisco. ) 

On  the  1st  day  of  March,  in  the  year  one  thou- 
sand nine  hundred  and  six,  at  the  request  of  T.  B., 
holder  of  the  bill  of  exchange  hereinafter  set 
forth,  I,  H.  K.,  a  notary  public  duly  commis- 
sioned and  sworn,  dwelling  in  the  city  and  county 
of  San  Francisco,  did,  during  business  hours  of 
said  day,  present  the  original  bill  of  exchange  (a 
copy  of  which  is  endorsed  on  the  reverse  side  of 


182  NOTARY'S  MANUAL. 

this  sheet)  at  the  place  of  business  of  A.  C.  &  Co., 
the  drawees,  No.  41?  Montgomery  Street,  in  this 
city,  and  demanded  acceptance  thereof  from  a 
member  of  the  firm,  which  he  refused  saying  "No 
advice".  I  then  presented  said  draft  to  G.  D. 
the  drawee  in  case  of  need,  and  demanded  ac- 
ceptance thereof  from  him,  to  which  he  replied 
"I  will  accept  this  'supra  protest'  for  the  honor 
of  J.  B.  the  drawer." 

Whereupon  I,  the  said  notary,  at  the  request 
aforesaid,  did  protest,  and  by  these  presents  do 
publicly  protest,  as  well  as  against  the  drawer 
and  endorsers  as  against  all  others  whom  it  doth 
or  may  concern,  for  exchange,  re-exchange,  and 
all  costs,  damages  and  interests,  already  incurred 
and  to  be  hereafter  incurred  for  the  non-accept- 
ance of  the  said  bill  of  exchange. 

I  do  hereby  certify,  that  on  the  2nd  day  of 
March,  1906,  notice  of  protest,  demand  and  non- 
acceptance  of  the  above  mentioned  bill  of  ex- 
change was  served  upon  the  drawer  and  endors- 
ers by  depositing  etc.  (as  in  No.  14). 


INDEX. 


SEC.  PAOK. 

Abandonment  of  homestead 118  92 

Acceptance  of  bill  of  exchange 185-90  141-3 

By  separate  instrument 187  142 

Cancellation  of 189  142 

For  honor 192-6  144-5 

Holder  not  required  to  allow 193  144 

How  made 194  144 

Must  be  treated  as  endorser 195  144 

Notice  of  dishonor  not  excused  by 196  145 

When  may  be  made 192  144 

How  made  generally 185  141 

Presentment  for 180-4  138-40 

How  must  be  made 183  139 

When  may  be  made 182  139 

When  must  be  made 182  139 

When  excused 184  140 

Acceptor,  defined 150  119 

Relation  of  to  other  parties 160  123 

Acknowledgment  of  instruments 13-41  18-45 

Authority  of  notary  to  take 17  21 

By  corporation 18 

By  married  women 23  33 

Certificate  of  acknowledgment 24-31  33-39 

Defective,  how  amended 39-41  44-5 

notary  may  not  correct 39  44 

action  brought  to  amend 40  44 

judgment  may  be  recorded 41  45 

Duty  of  notary  to  give 5  11 

Fees  for  writing  and  giving 6  13 

Form  of,  general 25  34-167 

Form  of,  husband  and  wife 168 

Forms  of,  corporation 26       40-169-70 

Form  of,  attorney  in  fact 27  35-170 

Must  contain  name  and  quality  of  officer .     29  37 

Notary  must  attach  to  instrument 24  33 

Requisites  of 29-30  37-8 

Signature,  name  of  office  and  seal 30  38 

Venue 29  37 

When  not  conclusive 31 

When  false,  notary  criminally  liable.  ...      12  17 

Disqualified,  when 17  21 

Duty  of  notary  to  take 5 

Fees  for  taking 6 

Judgments  may  be  recorded  without 43  47 

Letters  patent  may  be  recorded 44  47 


184  INDEX. 


BBC.  PAOE. 

Mode  of  taking  acknowledgments 18-22         22-32 

Certificate  must  be  attached 24  33 

Identity  of  party  must  be  established ....     18  22 

Mere  introduction  insufficient 19-20         23-31 

Negligence  of  injured  party  excuses  no- 
tary      21  31 

Statute  must  be  complied  with  or  notary 

liable 19-20        23-31 

Witness  swearing  falsely  commits  per- 
jury       22  32 

Nature  of  acknowledgment 13  18 

Of  personal  property  mortgages 94  79 

Purpose  of  acknowledgment 15  20 

Necessary  to  permit  instrument  to  be 

recorded 42  46 

What  may  be  recorded  without  acknowl- 
edgment      43-5  47-8 

What  instruments  may  be  acknowledged  or 

proved 16  20 

When  taken  outside  of  state 28  36 

Action  to  correct  defective  certificates 40  44 

Judgment  attached  to  permits  recording  of 

instrument 41  45 

Affidavits 121-7  95-9 

Authority  to  take 123  97 

Distinguished  from  depositions 121  95 

Definition  and  nature  of 121  95 

Duty  of  notary  to  take 5  12 

Fees  for  drawing  and  taking 6  13 

Jurat  to 127  99 

Must  be  in  writing 124  98 

Must  be  subscribed 124  98 

Must    accompany    personal    property    mort- 
gages       94  79 

Jurisdiction  to  take 7  14 

Oath  must  be  administered 124  98 

Presence  of  affiant 121  95 

Taken  over  telephone 121  95 

Title  of  cause 125  98 

Use  of 122  96 

Venue 126  99 

Affirmations.     (See  Oaths  and  Affirmations.) 

Appointment  of  notaries  public 1  9 

Arrest,  right  of  witness  to  protection  from 143 

Proceedings  in  case  of 143  113-4 

Assignment,  of  debt 84  73 

Of  mortgage,  record  of  as  notice 85  74 

Attachment  of  personal  property  mortgaged 103  83 

Attorney  in  Fact,  acknowledgment  by 27  35 

Execution  of  instrument  by 64  61 

(See  Powers  of  Attorney.) 

Attorneys'  Fees,  stipulation  for  in  negotiable  in- 
strument     164  128 


INDEX. 


185 


BEC.  PAOI. 

Bank-Notes,  defined 158  122 

Bills  and  Notes  (see  Negotiable  Instruments) 147-235  117-166 

Bills  of  Exchange 148-51  118-22 

Acceptance  of 185-90  141-3 

By  separate  instrument 187  142 

Cancellation  of 189  142 

How  made  generally 185  141 

Presentment  for 180-4  138-iO 

Acceptance  or  payment  for  honor 192-6  144—5 

Holder  not  required  to  allow  acceptance 

for  honor 193  144 

Holder  bound  to  accept  payment 193  144 

How  made 194  144 

Acceptor  for  honor,  endorser 195  144 

Notice  of  dishonor  not  excused  by 196  145 

When  may  be  made 192  144 

Bill  payable  at  sight  or  on  demand 200  148 

Apparent  maturity  of 200  148 

Definition  and  nature  of 148  118 

Duty  of  notary  with  respect  to 5  11 

Kinds  of 151  120 

Foreign 151  120 

Inland 151  120 

May  be  drawn  in  three  parts 148 

Non-acceptance  of 191  143 

Parties  to 150  119 

Presentment  for  acceptance 180-4  138-40 

How  must  be  made 183  139 

When  may  be  made 182  139 

When  must  be  made 182  139 

When  excused 184  140 

Presentment  for  payment 204-8  150-2 

Where  to  be  made  if  not  accepted 204  150 

Where  to  be  made  if  accepted 205  151 

When  to  be  made  if  payable  at  sight  or 

on  demand  without  interest 207  151 

Effect  of  delay  if  payable  at  sight  or  on 

demand  with  interest 207  151 

When  excused 208-222  152-8 

When  promissory  note  is  deemed  a  bill  of 

exchange 153  121 

Where  payable 149  119 

(See  Endorsement,  Dishonor,  Protest.) 

Bond  of  notary  public  to  be  given  on  qualifying .  .       3  10 

Liability  on 11  17 

For  failure  to  comply  with  statute 19 

Negligence  of  party  injured  excuses 21 

For  failure  to  give  notice  of  dishonor 231  163 

Certificate  of  acknowledgment 24-3 1  33-39 

Defective,  how  amended 39-41  44-5 

notary  may  not  correct 39  44 

action  brought  to  amend 40  44 

judgment  may  be  recorded 41  45 


186 


INDEX. 


BEC. 

FAQE. 

Duty  of  notary  to  give  

5 

11 

Fees  for  writing  and  giving  •  

6 

13 

Form  of,  general  

25 

34-167 

Form  of,  husband  and  wife  

168 

Forms  of,  corporation  

26       35 

,  169-70 

Form  of,  attorney  in  fact  

27 

35,  170 

Immaterial  variance  

24 

34 

Must  contain  name  and  quality  of  officer  

29 

37 

Notary  must  attach  to  instrument  

24 

33 

Requisites  of  

29-30 

37-8 

Signature,  name  of  office  and  seal  

30 

38 

Substantial  compliance  required  

24 

33 

Venue  

29 

37 

When  not  conclusive  

31 

39 

When  false,  notary  criminally  liable  

12 

17 

Certificate   of   county   clerk   to   acknowledgment 

taken  outside  of  state  

28 

36 

Certificate  to  deposition  

132 

104 

Form  of  7  

176 

Certificate  of  facts  given  on  qualifying  

4 

11 

Certificate  of  proof  of  instrument  when  not  ac- 

knowledged   

38 

44 

Forms  of  

171-5 

Certificate  of  deposit  

159 

123 

Certificate  of  residence  

45 

48 

Certified  copy  of  records  of  predecessor  

10 

17 

Chattel  Mortgages.     (See  Personal  Property  Mort- 

gages.) 

Checks,  defined  
What  rules  govern  

156 
157 

122 
122 

Classes  of  negotiable  instruments  

168 

131 

Compensation  of  notaries  public  

6 

13 

Consideration  for  transfer  of  property  

59 

58 

For  negotiable  instruments,  presumption.  .  .  . 

169 

132 

Contempt  of  court  —  disobedience  of  notary's  sub- 

posna  

137 

109 

Constructive  delivery  

71 

64 

Corporation,  acknowledgment  by  

18 

22 

Forms  of  certificate  of  

26 

35,  169 

Covenants,  implied  in  deeds  

77 

68 

Crops,  mortgage  on  

104 

84 

Damages,  allowed  on  protest  

234 

164 

How  to  be  estimated  

234 

165 

Liability  for  an  official  bond  

11 

17 

For  failure  to  comply  with  statute  
Negligence  of  party  injured  excuses  
For  failure  to  give  notice  of  dishonor  

19 
21 
231 

23 
31 
163 

INDEX. 


187 


Date,  negotiable  instrument  may  be  with  or  with- 
out     166 

Grant  presumed  to  have  been  delivered  at ...     69 


Days  of  grace 

Declaration  of  homestead 

Contents  of 

Effect  of  filing  for  record 

Recording  of 

Deeds 

Definitions. . 

Correction 

Grant,  bargain  and  sale 

Gift 

Quit-claim 

Trust  deed 

Warranty 

Delivery 

Constructive 

Deed  takes  effect  from 

In  escrow 

Necessity  for 

Redelivery 

Effect  of 

As  to  tenants 

How  far  conclusive 

Implied  covenants 

What  passes  by  conveyance 

Execution 

By  person  who  cannot  write 

By  attorney  in  fact 

By  married  women 

In  general 

Form  and  contents  of 

Code  form  of 

Consideration 

Description  of  property 

Parties  to 

Words  of  inheritance  unnecessary 

Implied  covenants 

Interpretation  of 

Intention  of  parties  must  be  ascertained . 

Doubtful  words  how  assisted 

In  favor  of  grantee,  except 

May  be  proved  for  record 

Must  be  in  writing  

Parties  to 

Correct  Names  required 

Grantee  must  be  a  person 

Void  when  made  with  intent  to  defraud  .... 
What  passes  by 

Easements 

Fee-simple  title 

Subsequently  acquired  interest 


202 

112-4 
112 
114 
113 

55-78 

55 

61 

55 

55 

55 

55 

55 

69-72 

71 

69 

70 

69 

72 

74-7 

75 

76 

77 

74 

62-5 

63 

64 

65 

62 

57-61 

57 

59 

61 

58 

60 

77 

73 

73 

73 

73 

39 

56 

58 

58 

58 

78 

74 

74 

74 

74 


130 
62 

150 

88-9 
88 
89 
89 

55-69 

55 

59 

55 

56 

56 

56 

56 

62-4 

64 

62 

63 

62 

64 

65-8 

67 

67 

68 

65-7 

60-61 

60 

61 

61 

60 

57-9 

57 

58 

59 

58 

59 

68 

64 

64 

64 

64 

44 

56 

58 

58 

58 

68 

65 

65 

65 

65 


188 


INDEX. 


SEC.  PAGE. 

Transfer  of  greater  interest  than  grantor 

has 74  65 

Title  to  center  of  highway 74  66 

When  made  on  condition  subsequent ...     74  67 

When  made  on  condition  precedent 74  67 

When  deemed  a  mortgage 81  72 

When  grant  of  real  property  is  recorded  as  a 

mortgage 90  77 

Defective  certificates 39-41  44-5 

notary  may  not  correct 39  44 

action  may  be  brought  to  amend 40  44 

judgment  may  be  recorded 41  45 

Delivery 69-72  62-4 

Constructive 71  64 

Deed  takes  effect  from 69  62 

In  escrow 70  63 

Necessity  for 69  62 

Redelivery 72  64 

Depositions 128-46  100-116 

Attendance  of  witnesses,  how  enforced 133-40  104-116 

Certificate  to 132  104 

Form  of 176 

Definition  and  nature  of 128  100 

Distinguished  from  affidavits 121-2  95-6 

Duty  of  notary  to  take 5  11 

Fees  for  taking 6  13 

Manner  of  taking  in  this  state 130  102 

To  be  used  out  of  state,  how  taken 131  104 

Oaths  and  affirmations 144-6  115-6 

Authority  of  notary  to  administer 145  115 

Form  of 146  115 

May  be  varied  to  suit  belief  of  witness ..    146  115 

Nature  of 144  115 

Subpoena 133-140     104-11 

Defined. 133  104 

Disobedience  of,  contempt  of  court 137  109 

Duty  of  witness  when  served  with 141  112 

How  served 135  108 

If  witness  be  a  prisoner,  how  brought. . .    140  111 

How  issued 134  105 

Obedience  to,  how  enforced 139  111 

Punishment  in  case  of  disobedience 138  110 

When  witness  not  obliged  to  obey 136  109 

Witnesses 141-3  112-14 

Deposition  of,  when  may  be  taken 129  101 

Duty  of 141  112 

Disobedience  of  subpoena,  contempt  of 

court 137  109 

Form  of  oath  may  be  varied  to  suit  be- 
lief of 146  115-16 

How  served  with  subpoena 135  108 

Must  answer  questions 141 

Prisoner,  how  brought 140  111 


INDEX. 


Punishment  in  case  of  disobedience  to 

subpoena 

Obedience  to  subpoena,  how  enforced . .  . 

Right  of,  to  protection  from  arrest 

Right  of,  to  protection  from  insult 

When  not  obliged  to  obey  subpoena 

Dishonor  of  negotiable  instruments 

Hotice  of 

By  whom  given 

Effect  of 

Every  additional  party  has  his  day 

Form  of 

How  given  by  agent 

How  served 

How  given  in  case  of  death 

Waiver  of 

When  to  be  given 

When  to  be  mailed 

When  excused 

,     Why  necessary 

Disqualification  of  notary 

Drawee,  who  is 

Refusal  to  return  bill  is  deemed  acceptance.  . 

Rights  and  obligations  of 

Drawee  in  case  of  need,  defined 

Drawer,  who  is 

Rights  and  obligations  of 

Duties  of  notary  public 

Easements  pass  with  grant 

Eligibility  of  notary 

Effect  of  deeds 

As  to  tenants 

How  far  conclusive 

Implied  covenants 

What  passes  by  conveyance 

Endorsement 

Denned 

Effect  of,  before  delivery  to  payee 

Endorser,  defined 

Acceptor  for  honor,  must  be  treated  as .  . 

Of  bill,  defined 

Of  promissory  note 

Relation  of  to  other  parties 

Rights  of 

Warranty  of 

Without  recourse 

When  instrument  is  left  blank 

When  a  guarantor 

Endorsee  in  due  course,  defined 

Relation  of  to  other  parties 

Rights  of 

When  instrument  is  left  blank 


189 

BKC. 

PAGI. 

138 

110 

139 

111 

143 

113 

142 

113 

136 

109 

211 

153 

212-21 

154-8 

212 

154 

220 

157 

219 

157 

213 

155,  176 

218 

157 

214 

155 

215 

156 

222 

158 

216 

156 

217 

156 

221-2 

158 

211 

153 

17 

21 

148-50 

118-9 

186 

141 

160 

123 

150 

119 

148-150 

118-9 

160 

123 

5 

11 

74 

65 

3-4 

10 

74-7 

65-8 

75 

67 

76 

67 

77 

68 

74 

65 

170-9 

132-8 

170 

132 

174 

134 

170 

132 

195 

144 

150 

119 

154 

121 

160 

123 

178 

136 

173 

134 

175 

135 

179 

138 

174 

134 

176 

135 

160 

123 

177 

136 

179 

138 

190 


INDEX. 


How  made 171  133 

Kinds  of 172  133 

General 172  133 

Special 172  133 

Endorser.     (See  Endorsement.) 

Endorsee.     (See  Endorsement.) 

Escrow,  delivery  of  deed  in 70  63 

Execution  of  instrument 62-5  60-1 

By  person  who  cannot  write 63  60 

By  attorney  in  fact 64  61 

By  married  women 65  61 

In  general 62  60 

Execution,  proof  of,  when  not  acknowledged 32-7  40-3 

By  subscribing  witness 34  40 

Form  of  certificate  of  proof  by 171 

By  handwriting,  when  may  be  made 35  41 

Forms  of 172-5 

Certificate  of  proof 38  44 

How  made 32  40 

Powers  of  officer  taking 37  43 

Execution,  homestead  exempt  from 115  90 

Homestead,  subject  to 116  91 

Exemption  of  homestead 115  90 

Extinction  of  negotiable  instruments 209-10       152-3 

Obligation,  when  extinguished 209  152 

Surrender  of  instrument  may  be  required....  210  153 

False  certificate,  notary  may  not  give 12  17 

Failure  to  record  instrument,  effect  of 52  51 

Fees  of  notaries  public 6  13 

Form  of  grant 57  57 

Of  mortgage  of  real  property 88  76 

Of  mortgage  of  personal  property 93  79 

Of  oath 146  115-6 

Of  certificates  of  acknowledgment 25-7  j  igylijo 

Of  certificates  of  proof 171-5 

Of  certificate  to  deposition 176 

Of  notice  of  protest 176 

Of  protest 177-82 

Fraud,  instrument  void  when  made  in 78  68 

Foreclosure  of  mortgage 82  73 

Foreign  bills  of  exchange,  defined 151  120 

Must  be  protested 151  120 

Gift  deed,  defined 55  55 

Qrant,  bargain  and  sale  deed,  defined 55  '55 

Grants.     (See  Deeds.) 

Guarantor,  when  endorser  is 174  134 


INDEX.  191 


SEC.  PAUE. 

Handwriting,  proof  of,  when  may  be  made 35  41 

Evidence  of,  must  prove  what 36  43 

Forms  of  certificate  of  proof  of 172-5 

Recording  of  such  instrument 48  49 

Head  of  a  Family,  denned 106  86 

Declaration  of  homestead  by 112  88 

Selection  of  homestead  by 1 10  87 

Homesteads 105-120      85-94 

Abandonment  of 118  92 

Declaration  of 112-14         88-9 

Contents  of 112  88 

Effect  of  filing  for  record 114  89 

Recording  of 113  89 

Execution,  exempt  from 115  90 

Subject  to 116  91 

Head  of  family,  defined 106  86 

Declaration  of  homestead  by 112  88 

Selection  of  homestead  by 110  87 

How  conveyed  or  encumbered 117  91 

Meaning  of 105  85 

Of  insane  persons. . . . : 120  94 

Proceedings  on  execution  against 119  92-3 

Selection  of 107-11         86-8 

From  what  it  may  be  selected 107  86 

From  what  it  may  not  be  selected 108  87 

How  made  by  head  of  a  family 110  87 

How  made  by  other  than  head  of  a  family  111 

Limitation  as  to  value 109  87 

Proceedings  when  value  exceeds  exemp- 
tion   119  92 

Value,  limitation  as  to 109  87 

Honor,  acceptance  or  payment  for 192-6  144—5 

Holder  not  required  to  allow  acceptance  for.  .  193  144 

Holder  bound  to  accept  payment  for 193 

Howmade {gj  }}J 

Acceptor  for,  must  be  treated  as  endorser. . .  195  144 

Honor,  acceptance  for 192-6  144-5 

Holder  not  required  to  allow 193  144 

Howmade 194  144 

Must  be  treated  as  endorser 195  144 

"*  Notice  of  dishonor  not  excused  by 196  145 

When  may  be  made 192  144 

Payment  for 192-6  144-5 

Holder  bound  to  accept 193 

How  made {  ^  J4^ 

When  may  be  made 192  144 

Identity  of  party  making  acknowledgment  must 

be  established 18  22 

Swearing  falsely  to,  is  perjury 22  32 


192 


INDEX. 


Implied  covenants 

Indorsement.     (See  Endorsement.) 

Introduction  by  third  person  not  sufficient 

Interpretation  of  deed 

Intention  of  parties  must  be  ascertained 

Doubtful  words  how  assisted 

In  favor  of  grantee,  except 

Inland  Bills,  defined 

Need  not  be  protested 

Insane  persons,  homestead  of 

Interest  allowed  on  protested  bills 

Judgments  may  be  recorded  without  acknowledg- 
ment..'.  

Joint  promissory  notes  denned 

Joint  and  Several  promissory  notes  denned 

Jurat  to  affidavit 

Jurisdiction  of  notaries  public ? 

Lease  for  one  year  must  be  in  writing 

Liability  on  bond 

For  failure  to  comply  with  statute 

Negligence  of  party  injured  excuses 

For  failure  to  give  notice  of  dishonor 

For  failure  to  properly  protest 

Liability,  criminal 

Letters  patent,  may  be  recorded  without  acknowl- 
edgment   

Maker  of  promissory  note 

In  same  position  as  acceptor  of  bill 

Mark,  person  may  make  who  cannot  write 

Married  women,  conveyance  and  acknowledgment 

by 

Execution  of  instrument  by 

May  make  power  of  attorney 

Maturity,  effect  of  transfer  before 

Mode  of  taking  acknowledgments 

Certificate  must  be  attached 

Identity  of  party  must  be  established 

Mere  introduction  insufficient 

Negligence  of  injured  party  excuses  notary.  . 
Statute   must   be   complied   with  or  notary 

liable 

Witness  swearing  falsely  commits  perjury. 

Mortgages 

Assignment  of  debt 

Assignment  of  mortgage,  record  of 


SEC. 

PAGE. 

77 

68 

20 

31 

73 
73 
73 
73 

64 
64 
64 
64 

151 

224 

120 
161 

120 

94 

235 

166 

43 

47 

155 

121 

155 

121 

127 

99 

7 

14 

56 

56 

11 
19 
21 
231 
223 

17 
23-31 
31 
164 
160 

12 

17 

44 

47 

154 
160 

121 

123 

63 

60 

23 
05 
67 

33 
61 
61 

162 

126 

18-22 
24 
18 
19-20 
21 

22-32 
33 
22 
23-30 
31 

19-20 
22 

23-30 
32 

79-104 
84 
85 

70-84 
73 

74 

INDEX.  193 


BBC.  PAGE. 

Definition  and  nature  of 79  70 

Acts  impairing  security 79  70 

Lien  of 79  70 

Must  be  in  writing 79  70 

Subsequently  acquired  title 79  70 

Duty  of  notary  to  take  acknowledgment.  ...  5  11 

Foreclosure  of 82  73 

How  discharged  of  record 86  74 

By  mortgagee 86  74 

By  foreign  executors  and  administrators.  86  71 

By  record  of  certificate  of  discharge ....  86  74 

Of  real  property 89-91        77-8 

Form  of  mortgage  of  real  property 89  77 

Record  of  mortgages  of  real  property.  91  78 

What  real  property  may  be  mortgaged . .  88  76 
When  grant  of  real  property  is  recorded 

as  mortgage 90  77 

Of  personal  property 92-104       78-84 

Affidavit  must  accompany 94  79 

Attachment  of  personal  property  mort- 
gaged   103  83 

Form  of 93  79 

Must  be  acknowledged 94  79 

On  crops 104  72 

Pledge,  change  of  possession  would  be. . .  80  71 
When  property  mortgaged  may  be 

taken  as 102  83 

Record  of 95-100       80-1 

Certified  copy  may  be  recorded.  . .  .  100  81 

Of  ships 96  80 

Of  property  in  transit 97  81 

Of  property  of  a  common  carrier. .  .  98 

Of  property  in  different  places 99  81 

When  and  where  to  be  made 95  80 

Removal  of  personal  property  mortgaged  101-2  82-3 

Exempt  from  mortgage  when 101  82 

May  be  taken  as  a  pledge  when 102  83 

What  personal  property  may  be  mort- 
gaged   92  78 

Possession  of  property 80  71 

Power  of  attorney  to  execute 83  63 

Satisfaction  of 87  76 

Transfer  of  property  when  a  mortgage 81  72 

Negotiability 161-9  124-132 

Effect  of 161  124 

Effect  of  transfer  before  maturity 162  126 

Date,  time  and  place  of  payment 166 

Presumption  as  to  consideration 169  132 

Requisites  of 163-9  127-132 

Must  be  payable  to  order  or  bearer 163 

May  provide  for  attorneys'  fees 164 

Must  be  unconditional  except 164 

Payee  must  be  designated 165  129 


194 


INDEX. 


SEC.  PAGE. 

Negotiable  Instruments 147-235  117-166 

Bank-notes 158  122 

Bills  of  exchange 148-51  118-120 

Acceptance  of 185-90  141-3 

By  separate  instrument 187  142 

Cancellation  of 189  142 

How  made  generally 185  141 

Presentment  for 180-4  138-40 

Acceptance  or  payment  for  honor 192-6  144-5 

Holder  not   required   to   allow   ac- 
ceptance for  honor 193  144 

Holder  bound  to  accept  payment ...  193  144 

How  made 194  144 

Acceptor  for  honor,  endorser 195  144 

Notice  of  dishonor  not  excused  by.  .  196  145 

When  may  be  made 192  144 

Bill  payable  at  sight  or  on  demand 200  148 

Apparent  maturity  of 200  148 

Definition  and  nature  of 148  118 

Duty  of  notary  with  respect  to 5  11 

Kinds  of 151  120 

Foreign 151  120 

Inland 151  120 

May  be  drawn  in  three  parts 148  118 

Non-acceptance 191  143 

Parties  to 150  119 

Presentment  for  acceptance 180—4  138-40 

How  must  be  made 183  139 

When  may  be  made 182  139 

When  excused 184  140 

Presentment  for  payment 204-8  150-2 

Where  to  be  made  if  not  accepted .  .  204  150 

Where  to  be  made  if  accepted 205  151 

When  to  be  made  if  payable  at  sight 

or  on  demand  without  interest.  206  151 
Effect  of  delay  if  payable  at  sight  or 

on  demand  with  interest 207  151 

Whenexcused {fO|  1|J 

When  a  promissory  note  is  deemed  a  bill 

of  exchange 153  121 

Where  payable 149  J19 

Certificates  of  deposit 159  123 

Classes  of  negotiable  instruments 168  131 

Checks  defined 156  122 

What  rules  govern 157 

Consideration,  presumption  as  to 169 

Date,  time  and  place  of  payment 166  130 

Days  of  grace 202  150 

Dishonor  of 211  153 

Notice  of 212-21  154-8 

By  whom  given 212  154 

Effect  of 220  157 

Every  additional  party  has  his  day .  219  157 

Form  of 213  155, 176 


INDEX. 


195 


How  given  by  agent 218  157 

How  served 214  155 

How  given  in  case  of  death 215  156 

Waiver  of 222  158 

When  to  be  given 216  156 

When  to  be  mailed 217  156 

When  excused 221-2  158 

Why  necessary 211  153 

Endorsement 170-9  132-8 

Defined 170  132 

Effect  of  before  delivery  to  payee 174  134 

Endorser,  defined 170 

Acceptor  for  honor,  endorser 195  144 

Of  bill,  defined 150  119 

Of  promissory  note 154  121 

Relation  of  to  other  parties 160  123 

Rights  of 178  136-7 

Warranty  of 173  134 

Without  recourse 175  135 

When  instrument  is  left  blank 179  138 

When  a  guarantor 174 

Endorsee  in  due  course,  defined 176 

Relation  of  to  other  parties 160  123 

Rights  of 177  136 

When  instrument  is  left  blank 179  138 

How  made 171  133 

Kinds  of 172  133 

General 172  133 

Special 172  133 

Extinction  or  payment  of 209-10       152-3 

Obligation  when  extinguished 209  152 

Surrender  of  instrument  may  be  required  210  153 

Maturity  of 199  148 

Negotiability 161-9  124-132 

Effect  of 161  124 

Effect  of  transfer  before  maturity 162  126 

Date,  time  and  place  of  payment 166  130 

Presumption  as  to  consideration 169  132 

Requisites  of 163-9  127-32 

Must  be  payable  to  order  or  bearer. .   163 
May  provide  for  attorneys'  fees. . . .    164 

Must  be  unconditional  except 164 

Payee  must  be  designated 165  129 

Non-negotiable  instruments,  transfer  of 162  126 

Notary,  duty  with  respect  to 147  117 

Protest  must  be  made  by 225  161 

Notice  of  dishonor.     (See  Dishonor.) 

Parties  to,  relation  of  to  each  other 160 

Payee  must  be  named 165  129 

Presentment  for  payment,  in  general 197-203     145—50 

Apparent  maturity  of,  in  general 199  148 

Apparent   maturity   of   bill   payable   at 

sight  or  on  demand 200  148 

Apparent  maturity  of  note  payable  at 

sight  or  on  demand 201  149 


196 


INDEX. 


BBC. 

PAGE. 

Days  of  grace  

202 

150 

Demand  not  necessary  to  charge  princi- 

pal debtor  

197 

145 

How,  when  and  where  made  

198 

146 

When  excused  

203 

150 

Presentment  of  bills  of  exchange  for  payment. 

(See  Bills  of  Exchange.) 

Waiver  of  

222 

158 

Promissory  notes  
Definition  and  nature  of  

152-5 
152 

120-21 
120 

Parties  to  

154 

121 

Apparent  maturity  of  note  payable  at 

sight  or  on  demand  

201 

149 

Kinds  of  

155 

121 

Joint  

155 

121 

Joint  and  several  

155 

121 

Parties  to  

154 

121 

Protest  

223-235 

159-«6 

By  whom  made  

225 

161 

Contents  of  

226 

161 

Damages  allowed  on  

234 

164 

Definition  and  nature  of  

223 

159 

Effect  of  

229 

163 

How  made  

226 

161 

Interest  allowed  on  

235 

166 

Necessary  to  foreign  bills  

224 

161 

Notice  of  protest  

231 

163 

Noting  of  

228 

162 

Prima  facie  evidence  of  facts  stated  

229 

163 

Waiver  of  | 

232 
222 

164 
158 

What  it  includes  

223 

159 

When  made  

228 

162 

When  excused  

230 

163 

Where  made  

227 

162 

Non-negotiable  Instruments  

162 

126 

Notaries  public  

1-2 

9-15 

Appointment  of  

1 

9 

Authority  of,  to  take  affidavits  

123 

97 

Authority  of,  to  take  acknowledgments  

17 

21 

Authority  of,  to  administer  oaths  

145 

115 

Bond  of  

3-4 

10-1 

Compensation  of  

6 

13 

Disqualification  of  

17 

21 

Duties  of  

5 

11 

Eligibility  of  

2 

10 

Jurisdiction  of  

7 

14 

Liability  of  

11-2 

17 

May  appoint  clerk  or  shorthand  reporter  to 

take  down  testimony  

130 

102 

May  issue  subpoena  

134 

105 

Number  of  

1 

9 

Powers  of,  on  taking  proof  of  instruments.  .  . 

37 

43 

Qualification  of,  for  office  

3-4 

10-1 

INDEX.  197 


SEC.  PAGE. 

Records  of 9-10  16-7 

Resignation  of 8-9  15—6 

Term  of  office 8  15 

Vacancy  in  office  of 8  15 

Notes.     (See  Promissory  Notes.) 

Notice  of  Dishonor 212-21  154-8 

By  whom  given 212  154 

Effect  of 220  157 

Every  additional  party  has  his  day 219  157 

Form  of 213  155. 176 

How  given  by  agent 218  157 

How  served 214  155 

How  given  in  case  of  death 215  156 

Waiver  of 222  158 

When  to  be  given 216  156 

When  to  be  mailed 217  156 

When  excused 221-2  158 

Why  necessary 211  153 

Notice  of  Protest 231  163 

Form  of 176 

Number  of  notaries  that  may  be  appointed 1  9 

Oath  of  office 3  10 

Oaths  and  Affirmations 144-6  115-6 

Authority  of  notary  to  administer 145  115 

Form  of 146  115 

May  be  varied  to  suit  belief  of  witness 146  115 

Nature  of 144  115 

Must  be  administered  on  taking  affidavit. . .  .  124 

Testifying  falsely  under,  perjury 22 

Official  Bond.     (See  Bond.) 

Official  Record,  duty  of  notary  to  keep 5  12 

Official  Seal.     (See  Seal.) 

Order  or  bearer,  negotiable  instrument  must  be 

payable  to 163  127 

Parties  to  conveyance 58  58 

To  bills  of  exchange 150  119 

To  promissory  notes 154  121 

Relation  of  parties  to  negotiable  instruments .  160  123 

Payee,  of  bill  denned 150  119 

Of  note,  defined 154  121 

Of  bill,  defined 150  119 

Must  be  designated  in  negotiable  instrument .  165  129 

Payment  or  extinction  of  negotiable  instruments ..  209-10  152-3 

Obligation  when  extinguished 209  152 

Surrender  of  instrument  may  be  required. ...  210  153 

Payment  for  honor 192-6  144-5 

Holder  bound  to  accept. . .            193  144 

t  104  144 

How  made I  033  1 54 

When  may  be  made 192  144 


198 


INDEX. 


Personal  Property  Mortgages 92-104      78-84 

Affidavit  must  accompany 94               79 

Attachment  of  personal  property  mortgaged .  103  83 

Form  of 93               79 

Must  be  acknowledged 94               79 

On  crops 104  84 

Pledge,  change  of  possession  would  be 80               71 

When  property  mortgaged  may  be  taken 

as 102               83 

Record  of 96-100       80-81 

Certified  copy  may  be  recorded 100               81 

Of  ships 96               80 

Of  property  in  transit 97               81 

Of  property  of  a  common  carrier 98               81 

Of  property  in  different  places 99               81 

When  and  where  to  be  made 95               80 

Removal  of  personal  property  mortgaged. . . .  101-2  82-3 

Exempt  from  execution  when 101               82 

May  be  taken  as  a  pledge  when 102 

What  personal  property  may  be  mortgaged..  92               78 

Pledge,  what 80              71 

Powers  of  Attorney 66-8          61-2 

Denned 66               61 

Duty  of  notary  to  take  acknowledgment  of .  .  5               11 

Married  woman  may  make 67               61 

Revocation  of 68              62 

Presentment  for  Acceptance 180-4  138-40 

How  must  be  made 183  139 

When  may  be  made 182  139 

When  must  be  made 182  139 

When  excused 184  140 

Presentment  for  Payment,  in  general 197-203     145-50 

Apparent  maturity  of,  in  general 199  148 

Apparent  maturity  of  bill  payable  at  sight  or 

on  demand 200  148 

Apparent  maturity  of  note  payable  at  sight  or 

on  demand 201  149 

Days  of  grace 202  150 

Demand  not  necessary  to  charge  principal 

debtor 197  145 

How,  when  and  where  made 198  146 

When  excused 203  150 

Presentment  of  bills  of  exchange  for  payment.  . .  .  204-8  150-2 

Effect  of  delay  if  payable  at  sight  or  on  de- 
mand with  interest 207  151 

Maturity  of  bill  payable  at  sight  or  on  demand  200  148 

When  to  be  made  if  payable  at  sight  or  on  de- 
mand without  interest 206  151 

Where  to  be  made  if  bill  not  accepted 204  150 

Where  to  be  made,  if  accepted 205  151 

•071.                                                                         f  208  !52 

When  excused f  222  158 


INDEX. 


199 


SEC.  PAQB. 

Prisoner,  how  brought  to  testify 140  111 

Promissory  Notes 152-5  120-21 

Definition  and  nature  of 152  120 

Parties  to ; 154  121 

Apparent  maturity  of  note  payable  at  sight  or 

on  demand 201  149 

Kinds  of 155  121 

Joint 155  121 

Joint  and  several 155  121 

Parties  to 154 

Secured  by  mortgage  are  not  negotiable 167  131 

Proof  of  execution  of  instruments  when  not  ac- 
knowledged      32-7  40-43 

By  subscribing  witness 34  40 

Form  of  certificate  of  proof  by 171 

By  handwriting,  when  may  be  made 35  41 

Formsof 172-4 

Certificate  of  proof 38  44 

How  made 32  40 

Powers  of  officer  taking 37  43 

Protest 223-235     159-66 

By  whom  made 225  161 

Contents  of 226  161 

Damages  allowed  on 234  164 

Definition  and  nature  of 223  159 

Effect  of 229  163 

How  made 226  161 

Interest  allowed  on 235  166 

Necessary  to  foreign  bills 224  161 

Notice  of  protest 231  163 

Noting  of 228  162 

Prima  facie  evidence  of  facts  stated 229 

Waiver  of {Hi  158 

What  it  includes 223  159 

When  made 228  162 

When  excused 230  163 

Where  made 227  162 

Qualification  of  notaries  public 3-4  10-11 

Quit-claim  deed,  defined 55  55 

Real  Property  Mortgages 89-91        77-8 

Form  of  mortgage  of  real  property 89 

Record  of  mortgages  of  real  property 91 

What  real  property  may  be  mortgaged 88  76 

When  grant  of  real  property  is  recorded  as 

mortgage 90  77 

(See  Mortgages.) 

Recording  of  Instruments 42-54         46-53 

Acknowledgment  necessary 42  46 

Effect  of  failure  to  record 52  51 

Mode  of 46-8  49 

Where  instrument  must  be  recorded ....     46  49 

When  deemed  recorded 47  49 


200  INDEX. 


SEC.  PA.GE. 

When  execution  is  established  by  proof  of 

handwriting. 48               49 

Of  mortgages  of  realproperty 91               78 

Of  discharge  of 86               74 

Of  mortgages  of  personal  property 95-100       80-81 

Of  powers  of  attorney  and  revocation 68               62 

Of  homesteads 113-4  89 

Purpose  and  effect  of 49-51         50-1 

Constructive  notice 49               50 

Record  may  be  used  in  evidence 51               51 

Certified  copy  may  be  again  recorded ...  50               50 

Unrecorded  instruments  when  valid 53  52 

What  may  be  recorded  without  acknowledg- 
ment   43-5  47-8 

Certificates  of  residence 45  48 

Judgments 43  47 

Letters  patent 44  47 

Records  of  notary,  duty  to  keep 5               12 

Must  give  certified  copy  of 5               12 

In  case  of  death  or  resignation 8-9           14 

Of  predecessor 10  17 

Redelivery  of  deeds 72  64 

Residence  of  notary  public 2               10 

Resignation  of  notary  public 8-9           14 

Revocation  of  power  of  attorney 68  62 

Satisfaction  of  mortgage 87  76 

Seal,  duty  of  notary  to  keep  and  use 5               12 

Style  of 5  12 

Selection  of  homestead 107-11  86-8 

From  what  it  may  be  selected 107  86 

From  what  it  may  not  be  selected 108  87 

How  made  by  head  of  a  family 110 

How  made  by  other  than  head  of  a  family. . .  Ill 

Limitation  as  to  value 109  87 

Proceedings  when  value  exceeds  exemption ..  119  92 

Signature,  must  be  attached 30  38 

Statute  of  limitations 197  145 

Subpoena...                                                                   .  133-40  104-11 

Defined 133  104 

Disobedience  of  contempt  of  court 137  109 

Duty  of  witness  when  served  with 141  112 

How  served 135  108 

If  witness  be  a  prisoner,  how  brought 140  111 

How  issued 134  105 

Obedience  to,  how  enforced 139  111 

Punishment  in  case  of  disobedience 138 

When  witness  not  obliged  to  obey 136  109 

Subscribing  Witness,  denned 33  40 

Proof  of  execution,  how  made  by 34  40 

Form  of  certificate  of  proof,  by 171 


INDEX.  201 


BEC.  PAGE. 

Successor — his  term  of  office 8  15-6 

Records  of  predecessor 9-10         16-7 

Telephone,  taking  oath  over 7, 121       14,  95 

Tenants,  attornment  of 75  67 

Term  of  office  of  notary  public 8  15 

Territorial  limits  of  jurisdiction 7  14 

Time  and  place  of  payment  of  negotiable  instru- 
ments   166  130 

Title  to  affidavits 125  98 

Transfers.     (See  Deeds.) 

Trust  deed,  defined 55  55 

Unlawful  transfers 78  67 

Unrecorded  instrument,  when  valid 53  52 

Vacancy  in  office 8-9  1 5-6 

Value  of  homestead  exemption 109  87 

Venue  to  certificate  of  acknowledgment 29  37 

To  affidavit 126  99 

Waiver  of  presentment 222  158 

Of  notice  of  dishonor 222  158 

Of  protest 222  158 

Of  protest  and  notice  of  dishonor 232  164 

Warranty  deed,  defined 55  55 

Witnesses 141-3  112-3 

Deposition  of,  when  may  be  taken 129  101 

Duty  of 141  112 

Disobedience  of  subpoena,  contempt  of  court .  137  109 

Form  of  oath  may  be  varied  to  suit  belief  of.  .  146  115 

How  served  with  subpoena 135  108 

Must  answer  questions 141  87 

Prisoner,  how  brought 140  111 

Punishment  in  case  of  disobedience  to  sub- 
poena  ,_ 138  110 

Obedience  to  subpoena,  how  enforced 139  111 

Right  of,  to  protection  from  arrest 143  113 

Right  of,  to  protection  from  insult 142  113 

When  not  obliged  to  obey  subpoena 136  109 

Women.     (See  Married  Women.) 

May  be  appointed 1  9 

Write,  person  who  cannot  may  make  mark 63  60 

Acknowledgment  by 63  60 

Words  of  inheritance  unnecessary  in  deed 60  59 


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